No. 15-1387

In the Supreme Court of the United States

UNITED STATES FOREST SERVICE, ET AL., PETITIONERS

v.

COTTONWOOD ENVIRONMENTAL LAW CENTER

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JEFFREY PRIETO General Counsel Department of Agriculture Washington, D.C. 20250

DONALD B. VERRILLI, JR. Solicitor General

Counsel of Record JOHN C. CRUDEN

Assistant Attorney General EDWIN S. KNEEDLER

Deputy Solicitor General SARAH E. HARRINGTON

Assistant to the Solicitor General

ANDREW C. MERGEN DAVID C. SHILTON JOHN H. MARTIN ALLEN M. BRABENDER

Attorneys Department of Justice Washington, D.C. 20530-0001 SupremeCtBriefs@usdoj.gov (202) 514-2217

(I)

QUESTIONS PRESENTED

In 2000, the Fish and Wildlife Service (FWS) added the Distinct Population Segment of the Canada lynx in the contiguous United States to the list of threatened species pursuant to the Endangered Species Act of 1973 (ESA), 16 U.S.C. 1531 et seq. In response, the Forest Service amended 20 forest plans governing 18 National Forest System (NFS) units in the northern Rocky Mountains area. The amendment process in-volved consultation pursuant to Section 7 of the ESA, 16 U.S.C. 1536(a)(2), between the Forest Service and FWS. At that time, FWS had not designated any critical habitat for the lynx on NFS lands. The Forest Service completed the amendment process in 2007 when it adopted the “Lynx Amendments.” In 2009, FWS designated lands located in 11 NFS units gov-erned by the Lynx Amendments as critical habitat for the lynx. The questions presented are:

1. Whether respondent has Article III standing to challenge the Forest Service’s failure to reinitiate Section 7 consultation on the Lynx Amendments, which were completed in 2007, after FWS designated additional critical habitat for the lynx in 2009, when respondent cannot identify any member who has or will suffer a concrete injury as a result.

2. Whether respondent’s challenge to the Forest Service’s programmatic amendments is ripe for review when respondent failed to challenge any site-specific project authorized under the amended plan provisions.

3. Whether Section 7(a)(2) of the ESA requires the Forest Service to reinitiate consultation on a complet-ed programmatic agency action that has no on-the-ground effects when a new species is listed or new critical habitat is designated.

(II)

PARTIES INVOLVED

Petitioners are the United States Forest Service and Leanne Marten, in her official capacity as Region-al Forester for Region One of the United States For-est Service.

Respondent, who was plaintiff-appellee below, is Cottonwood Environmental Law Center.

(III)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statutory and regulatory provisions involved .......................... 2 Statement ...................................................................................... 2 Reasons for granting the petition ............................................. 10

A. The court of appeals erred in holding that respondent had Article III standing ............................. 12

B. Review is also warranted because respondent’s programmatic challenge is not ripe for review ............ 21

C. The Ninth Circuit erred in holding that Section 7 of the ESA applies to a completed programmatic agency action that has no on-the-ground effects ......... 27

Conclusion ................................................................................... 35 Appendix A — Court of appeals order (Dec. 17, 2015) ......... 1a Appendix B — Court of appeals opinion (June 17, 2015) ..... 3a Appendix C — District court order (May 16, 2013) ............ 42a Appendix D — Declaration of Sara Jane Johnson (Nov. 27, 2012) .......................................... 78a Appendix E — Declaration of Joe Milbrath (Nov. 22, 2012) .......................................... 82a Appendix F — Declaration of Jennifer Pulchinski (Sept. 4, 2012) ............................................ 87a Appendix G — Statutory and regulatory provisions .......... 90a

TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ......... 21, 22 Allen v. Wright, 468 U.S. 737 (1984) .............................. 13 Babbitt v. United Farm Workers Nat’l Union,

442 U.S. 289 (1979) ....................................................... 13 Bensman v. United States Forest Serv., 408 F.3d

945 (7th Cir.2005) ......................................................... 19

IV

Cases—Continued: Page

Center for Biological Diversity v. Lueckel, 417 F.3d 532 (6th Cir. 2005) ......................................... 18

Center for Biological Diversity v. United States Dep’t of the Interior, 563 F.3d 466 (D.C. Cir. 2009) ........................................................................ 26, 27

Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961 (9th Cir. 2003) .............................. 9

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ............................................................................ 17

Forest Guardians v. Forsgren, 478 F.3d 1149 (10th Cir.2007) ................................................... 32, 33, 34

Heartwood, Inc. v. Agpaoa, 628 F.3d 261 (6th Cir. 2010) .............................................................................. 18

Heartwood, Inc. v. United States Forest Serv., 230 F.3d 947 (7th Cir. 2000) ................................... 19, 27

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................. 12, 13, 17

Lujan v. National Wildlife Fed’n, 497 U.S. 871 (1990) ............................................................................ 26

National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (2007) ......................................... 4

National Ass’n of Home Builders v. EPA, 667 F.3d 6 (D.C. Cir. 2011) .......................................... 19

National Park Hospitality Ass’n v. Department of the Interior, 538 U.S. 803 (2003) ............................. 25

Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) .............................................. 12, 27, 29

Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726 (1998) ......................................................... 2, 3, 22, 23, 24

Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir.1994), cert. denied, 514 U.S. 1082 (1995) ...... 32

V

Cases—Continued: Page

Pacific Rivers Council v. United States Forest Serv., 689 F.3d 1012 (9th Cir. 2012), cert. granted, 133 S. Ct. 1582 (2013) ........................... 21

Pollack v. United States Dep’t of Justice, 577 F.3d 736 (7th Cir. 2009), cert. denied, 559 U.S. 1006 (2010) ...................................................................... 18, 19

Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) ............................................................................ 26

Schlesinger v. Reservists Comm. To Stop the War, 418 U.S. 208 (1974) ....................................................... 13

Summers v. Earth Island Inst., 555 U.S. 488 (2009) ..................................................... 11, 13, 14, 16, 17

Texas v. United States, 523 U.S. 296 (1998) .................. 25 Thomas v. Pacific Rivers Council, 514 U.S. 1082

(1995) ............................................................................ 33 Thomas v. Union Carbide Agric. Prods. Co.,

473 U.S. 568 (1985) ....................................................... 25 United States Forest Serv. v. Pacific Rivers

Council, 133 S. Ct. 2843 (2013) .................................... 21 Whitmore v. Arkansas, 495 U.S. 149 (1990) .................. 13

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 701 et seq. ..... 16 5 U.S.C. 704 ...................................................................... 26

Clean Water Act, 33 U.S.C. 1251 et seq. ........................ 19 Endangered Species Act of 1973, 16 U.S.C. 1531

et seq. .............................................................................. 3 16 U.S.C. 1531(b) ............................................................... 3 16 U.S.C. 1532(6) ............................................................... 3 16 U.S.C. 1532(15) ............................................................. 3 16 U.S.C. 1532(20) ............................................................. 3

VI

Statues and regulations—Continued: Page

16 U.S.C. 1533 .................................................................... 3 16 U.S.C. 1533(c) ............................................................... 3 16 U.S.C. 1536 (§ 7) ................................................ passim 16 U.S.C. 1536(a)(2) (§ 7(a)(2)) ............................. 3, 28, 29 16 U.S.C. 1536(b)(3)(A) ..................................................... 4 16 U.S.C. 1540(g) ............................................................... 6

National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. ..................................................... 3

42 U.S.C. 4332(2)(C) ........................................................ 29 National Forest Management Act of 1976,

16 U.S.C. 1600 et seq. ..................................................... 2 16 U.S.C. 1604(a) ......................................................... 2, 20 16 U.S.C. 1604(d) ............................................................... 2 16 U.S.C. 1604(e) ............................................................... 2 16 U.S.C. 1604(f)(4) ........................................................... 2 16 U.S.C. 1604(f)(5) ........................................................... 2 16 U.S.C. 1604(g) ............................................................... 2 16 U.S.C. 1604(i) .......................................................... 2, 30

43 U.S.C. 1712 ................................................................. 20 43 C.F.R. 1601.0-6 ........................................................... 29 50 C.F.R. Pt. 402:

Section 402.02 .................................................................... 4 Section 402.02(b) .............................................................. 29 Section 402.02(c) .............................................................. 29 Section 402.03 .................................................................... 4 Section 402.10(a) .............................................................. 28 Section 402.11(a) .............................................................. 28 Section 402.12(b) .............................................................. 28 Section 402.14 .................................................................... 4 Section 402.14(h)(2) ........................................................... 4

VII

Regulations—Continued: Page

Section 402.14(h)(3) ........................................................... 4 Section 402.16 .............................................................. 5, 30

Miscellaneous:

Bureau of Land Mgmt., U.S. Dep’t of the Interior, Public Land Statistics 2014 (May 2015), http:// www.blm.gov/public_land_statistics/pls14/

pls2014.pdf ........................................................................... 33 Div. of Decision Support, Planning, & NEPA, Bu-

reau of Land Mgmt., U.S. Dep’t of the Interior, http://www.blm.gov/wo/st/en/prog/planning.html (last visited May 12, 2016) .................................................. 20

65 Fed. Reg. 16,052 (Mar. 24, 2000) ................................. 5 71 Fed. Reg. (Nov. 9, 2006):

p. 66,008 .............................................................................. 6 pp. 66,010-66,011 ................................................................ 6

74 Fed. Reg. (Feb. 25, 2009): p. 8616 ................................................................................. 6 pp. 8617-8618 ...................................................................... 6

Lands and Realty Mgmt., U.S. Forest Serv.: http://www.fs.fed.us/land/staff/

(last visited May 12, 2016)......................................... 20 Land Areas Report (Sept. 30, 2015),

http://www.fs.fed.us/land/staff/ lar/LAR2015/lar2015index.html ............................... 33

Office of Governmentwide Policy, U.S. Gen. Serv. Admin., 2003 Federal Real Property Profile (Sept. 30, 2003), http://www.gsa.gov/graphics/ogp/ Annual_Report_FY2003-R4_R2M-n11_ 0Z5RDZ-i34K-pR.pdf ....................................................... 20

VIII

Miscellaneous—Continued: Page

U.S. Fish and Wildlife Serv., Environmental Con-servation Online System, http://ecos.fws.gov/ tess_public/reports/ad-hoc-species-report-input (last visited May 12, 2016) .................................................. 34

(1)

In the Supreme Court of the United States

No. 15-1387 UNITED STATES FOREST SERVICE,

ET AL., PETITIONERS

v. COTTONWOOD ENVIRONMENTAL LAW CENTER

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of the United States Forest Service and Leanne Marten, Regional Forester for Region One of the Forest Service, re-spectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 3a-41a) is reported at 789 F.3d 1075. The opinion of the district court (App., infra, 42a-77a) is reported at 944 F. Supp. 2d 984.

JURISDICTION

The judgment of the court of appeals was entered on June 17, 2015. Petitions for rehearing were denied on December 17, 2015 (App., infra, 1a-2a). On March 4, 2016, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and

2

including April 15, 2016. On April 6, 2016, Justice Kennedy further extended the time to May 13, 2016. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS INVOLVED

Pertinent provisions are set out in the appendix to the petition (App., infra, 90a-91a).

STATEMENT

1. a. The National Forest Management Act of 1976 (NFMA), 16 U.S.C. 1600 et seq., requires the Secre-tary of Agriculture to “develop, maintain, and, as appropriate, revise land and resource management plans for units of the National Forest System.” 16 U.S.C. 1604(a); see Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 728 (1998). The Forest Service, which is part of the United States Department of Agriculture, develops such plans (also known as forest plans) to provide standards and guidelines for forest-resource management, taking into account both eco-nomic and environmental considerations, and to pro-vide for multiple uses and sustained yield of forest resources. See 16 U.S.C. 1604(a), (e), and (g). Once a plan is adopted, permits, contracts, and other instru-ments issued by the Forest Service for use and occu-pancy within a unit covered by the plan must be con-sistent with the plan, unless the agency, through a separate formal decision-making process, chooses to amend or revise the plan. See 16 U.S.C. 1604(d), (f)(4) and (5), and (i).

Forest plans are broad planning documents that guide the long-term management of National Forests. Unless it expressly states otherwise, a forest plan does not authorize any on-the-ground action such as

3

road building or timber cutting. Ohio Forestry, 523 U.S. at 729-730. Before proceeding with a site-specific project, the Forest Service must, inter alia, ensure that the proposed project is consistent with the appli-cable forest plan, conduct an environmental analysis pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq., and provide notice and an opportunity for comment to interested persons. See Ohio Forestry, 523 U.S. at 729-730. The Forest Service must also ensure that the proposed project is consistent with the Endangered Species Act (ESA), 16 U.S.C. 1531 et seq.

b. Congress enacted the ESA in 1973 to, inter alia, conserve species that the Secretary of the Interior or Commerce has determined are either endangered or threatened. See 16 U.S.C. 1531(b), 1532(6), 1532(15), 1532(20), 1533. The ESA requires the Secretaries to maintain a list of all endangered or threatened spe-cies. 16 U.S.C. 1533(c). As pertinent here, ESA Sec-tion 7(a)(2) requires each federal agency to “insure that any action authorized, funded, or carried out by such agency * * * is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification” of a listed species’ designated critical habitat. 16 U.S.C. 1536(a)(2). Federal regula-tions define the type of agency “action” that is covered by Section 7 of the ESA as:

[A]ll activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Fed-eral agencies in the United States or upon the high seas. Examples include, but are not limited to: (a) actions intended to conserve listed species or their habitat; (b) the promulgation of regulations;

4

(c) the granting of licenses, contracts, leases, ease-ments, rights-of-way, permits, or grants-in-aid; or (d) actions directly or indirectly causing modifica-tions to the land, water, or air.

50 C.F.R. 402.02. The regulations implementing Sec-tion 7 of the ESA apply to “all actions in which there is discretionary Federal involvement or control.” 50 C.F.R. 402.03; see National Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 665 (2007).

When an agency proposes to take an action, it must first determine whether such action “may affect” a listed species or designated critical habitat for a listed species. 50 C.F.R. 402.14. If the agency determines that the action “is likely to adversely affect” a listed species or the critical habitat of a listed species, it must engage in formal consultation with either the Fish and Wildlife Service (FWS) or the National Ma-rine Fisheries Service (NMFS), depending on the species involved. Formal consultation results in a “biological opinion,” prepared by FWS or NMFS, that addresses whether the proposed action is likely to jeopardize the continued existence of any listed spe-cies or is likely to result in the destruction or adverse modification of any designated critical habitat. 50 C.F.R. 402.14(h)(3). The biological opinion includes a “detailed discussion of the effects of the action on listed species or critical habitat.” 50 C.F.R. 402.14(h)(2). If the biological opinion concludes that the proposed action is likely to result in jeopardy to the listed species or adverse modification to designat-ed critical habitat, FWS must set forth reasonable and prudent alternatives to the action, if any exist. 16 U.S.C. 1536(b)(3)(A). Under ESA regulations, a fed-eral agency must reinitiate Section 7 consultation

5

after an initial consultation “where discretionary Fed-eral involvement or control over the action has been retained or is authorized by law” and one of four con-ditions is met, including when “new information re-veals effects of the action that may affect listed spe-cies or critical habitat in a manner or to an extent not previously considered,” or when “a new species is listed or critical habitat designated that may be af-fected by the identified action.” 50 C.F.R. 402.16.

2. In 2000, FWS added the Distinct Population Segment of the Canada lynx in the contiguous United States to the ESA list of threatened species. See 65 Fed. Reg. 16,052 (Mar. 24, 2000). In response to the lynx listing, the Forest Service developed the North-ern Rockies Lynx Management Direction (the Lynx Amendments) to help conserve the lynx and its habitat on National Forest System (NFS) lands. App., infra, 5a; see C.A. E.R. 243-313 (Record of Decision). The Lynx Amendments, which were finalized and adopted as a unit in 2007, amended 20 forest plans covering 18 separate NFS units in the northern Rocky Mountains area. See App., infra, 70a; C.A. E.R. 243, 299. The Lynx Amendments amended existing forest plans to provide specific goals, objectives, standards, and guidelines that Forest Service personnel must follow when managing the forests, and in particular when deciding whether to approve proposed on-the-ground projects. C.A. E.R. 299-313. Like the forest plans into which they were incorporated, the Lynx Amend-ments were programmatic in nature, providing crite-ria that would be applied to future management activi-ties that might later be separately approved, and therefore had no immediate on-the-ground effects. See id. at 253-257.

6

In 2005, while developing the Lynx Amendments, the Forest Service initiated formal Section 7 consulta-tion with FWS, and FWS produced a biological opin-ion in 2007. See C.A. E.R. 143-227. Because FWS had not yet designated any critical habitat for Canada lynx on NFS lands, that consultation did not consider whether the Lynx Amendments would affect lynx critical habitat. See id. at 217. In its biological opin-ion, FWS concluded that the forest plans as amended by the Lynx Amendments were not likely to jeopard-ize the lynx’s continued existence. Ibid.

In 2006, FWS designated 1841 square miles in Na-tional Parks as critical habitat for the lynx. 71 Fed. Reg. 66,008 (Nov. 9, 2006). FWS did not designate any National Forest lands as critical habitat because, among other reasons, FWS determined that the im-pending adoption of the Lynx Amendments by the Forest Service and existing conservation measures provided sufficient protection for the lynx and made it unnecessary to designate critical habitat on those lands. See id. at 66,010-66,011. In 2007, FWS an-nounced that it would review its critical-habitat desig-nation due to questions about the integrity of scien-tific information and legal standards used in the 2006 designation. See 74 Fed. Reg. 8616, 8617-8618 (Feb. 25, 2009). In 2009, FWS extended critical-habitat protections to, inter alia, additional lands in Idaho, Montana, Washington, and Wyoming that were occu-pied by Canada lynx, including areas within 11 Na-tional Forests covered by the Lynx Amendments. See id. at 8616; App., infra, 44a.

3. In March 2012, respondent (an environmental organization) filed this suit under 16 U.S.C. 1540(g), alleging that the Forest Service violated the ESA and

7

its implementing regulations by failing to reinitiate Section 7 consultation on the Lynx Amendments after the 2009 designation of lynx critical habitat on NFS lands. See App., infra, 44a. In its complaint, re-spondent characterized its suit as a challenge to “pro-grammatic management” and did not purport to chal-lenge any site-specific actions in a Forest Service unit covered by a forest plan amended by the Lynx Amendments. C.A. E.R. 56. Respondent alleged that its members have ongoing interests in recreating in and looking for lynx in designated lynx critical habitat in NFS units covered by the Lynx Amendments. Id. at 56-57; see also id. at 72-79, 98-114 (member decla-rations). Respondent sought declaratory and injunc-tive relief. Id. at 68.

The district court entered judgment for respond-ent. App., infra, 42a-77a. The court first concluded that respondent had established Article III standing to challenge the “programmatic [Lynx A]mend-ment[s],” id. at 42a, because respondent “allege[d] a procedural violation related to a programmatic plan affecting multiple forests,” id. at 53a. The court deemed it “irrelevant that the biological opinions” that resulted from ESA consultation on the two site-specific projects that respondent’s members identified in their declarations (but that respondent did not challenge)—the Bozeman Municipal Watershed Pro-ject and the East Boulder Project—had found that neither project will adversely modify lynx critical habitat. Id. at 52a; see id. at 44a-55a.

On the merits, the district court concluded that the Forest Service violated the ESA by not reinitiating consultation on the Lynx Amendments after FWS’s 2009 designation of critical habitat. App., infra, 70a-

8

72a. The court rejected the government’s argument that no further consultation was required because the relevant agency action was completed when the Lynx Amendments were incorporated into the various for-est plans in 2007, concluding instead that forest plans are continuing agency action for purposes of ESA Section 7. Id. at 60a-70a.

The district court denied respondent’s request for a broad injunction barring all site-specific projects and activities that may affect lynx critical habitat because respondent failed to demonstrate “likely and irrepa-rable harm tied to specific projects in Lynx Amend-ment forests.” App., infra, 76a; id. at 72a-77a; see D. Ct. Doc. 17, at 24-27 (Sept. 10, 2012). The district court also declined to enjoin the two particular pro-jects in areas several members stated in declarations that they visited, finding that respondent “ma[d]e no showing” that “harm is likely to occur despite the site-specific analyses” that had been conducted for those projects under Section 7 of the ESA, or that any such harm is irreparable. App., infra, 77a. The district court ordered the Forest Service to reinitiate consul-tation and entered final judgment for respondent. Id. at 77a.

4. The court of appeals affirmed and remanded. App., infra, 3a-41a.

The court of appeals agreed with the district court that respondent has “standing to challenge program-matic management direction without also challenging an implementing project that will cause discrete inju-ry.” App., infra, 12a. The court relied on representa-tions in respondent’s member declarations that they had recreated in forest areas where the Lynx Amendments apply, including by looking for lynx, and

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had plans to do so again. Id. at 8a-12a. The court concluded that respondent “properly alleges proce-dural injury stemming from the Forest Service’s deci-sion not to reinitiate consultation on the Lynx Amendments,” and held that “[t]he declarations con-nect that procedural injury to imminent harm in spe-cific forests and project areas,” id. at 12a-13a, not-withstanding respondent’s failure to establish how the Forest Service’s decision not to reinitiate consultation had led or would lead to concrete injury from any specific on-the-ground project, id. at 15a-17a. The court further held that respondent’s claims are ripe because “[w]hen a party such as [respondent] suffers a procedural injury,” “[t]he imminence of project-specific implementation ‘is irrelevant to the ripeness of [the] action.’  ” Id. at 18a (quoting Citizens for Bet-ter Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 977 (9th Cir. 2003)); see id. at 17a-19a.

On the merits, the court of appeals declined to adopt the district court’s holding that a forest plan is an ongoing agency action, holding instead that, “even if the agency action is complete and not ‘ongoing,’ the agency still may be required to reinitiate consultation if there is ‘discretionary Federal involvement or con-trol’ over the completed action.” App., infra, 23a n.12. The court then reasoned that the Forest Service re-tains discretionary involvement or control over a for-est plan because the Forest Service “make[s] addi-tional decisions after approval that implement land use plans at the site-specific level,” id. at 24a, and that it therefore “has a continuing obligation to follow the requirements of the ESA,” id. at 25a (citation omit-ted). See id. at 23a-26a. The court thus held that “the Forest Service was required to reinitiate consultation

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when the FWS designated critical habitat in National Forests.” Id. at 26a.

Addressing respondent’s cross-appeal, the panel rejected respondent’s argument that the district court should have enjoined every site-specific project gov-erned by the Lynx Amendments that may affect the lynx habitat even though respondent had not estab-lished a likelihood of irreparable injury. App., infra, 27a; id. at 27a-35a. But the court remanded the case to give respondent a second opportunity to seek in-junctions against specific projects. Id. at 34a-35a. Judge Pregerson dissented in part, stating that he would have applied a presumption of irreparable harm when a plaintiff establishes a procedural injury. Id. at 35a-41a.

5. The court of appeals denied both parties’ peti-tions for rehearing. App., infra, 1a-2a.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit held that respondent has stand-ing to challenge the Forest Service’s failure to reiniti-ate formal consultation under Section 7 of the ESA on the programmatic Lynx Amendments, which do not themselves authorize any site-specific project to pro-ceed and therefore have no concrete effects on re-spondent’s members. Before the Forest Service may approve a particular project that may affect lynx or its critical habitat, it must consult with FWS about the effects the project would have on the lynx and its critical habitat. Indeed, since the critical-habitat designation in 2009, the Forest Service has consulted with FWS on every site-specific project approved under forest plans amended by the Lynx Amendments that may affect the lynx or its critical habitat. Re-spondent has not challenged any site-specific project

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and has not identified any concrete harm to even one of its members resulting from approval of a project governed by the Lynx Amendments. If respondent identifies a project causing concrete or imminent harm to a member in the future, respondent will have standing to challenge that project and the adequacy and timing of the agency’s consultation pursuant to Section 7 of the ESA. But absent that showing, re-spondent does not have standing. The court of ap-peals’ conclusion to the contrary directly conflicts with this Court’s decision in Summers v. Earth Island Institute, 555 U.S. 488 (2009), and with decisions of several other courts of appeals.

For similar reasons, respondent’s challenge to the Lynx Amendments is not ripe for review independent of a challenge to a specific project approved in con-formity with a forest plan amended by the Lynx Amendments. The Ninth Circuit has repeatedly held that so-called procedural challenges to programmatic decisions are ripe even when they do not authorize any site-specific project. That rule conflicts with the rule applied in the D.C. Circuit and is in tension with numerous decisions of this Court.

In 2013, this Court granted the government’s petition for a writ of certiorari in United States Forest Service v. Pacific Rivers Council, No. 12-623, which presented the same standing and ripeness issues presented here. The Court was deprived of a chance to rule on those questions, however, when the environmental-group respondent in that case dis-missed its complaint and agreed to vacatur of the Ninth Circuit’s decision in its favor. The Ninth Circuit’s continued adherence to its flawed approach

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to standing and ripeness underscores the importance of now granting the government’s petition in this case.

Finally, the Ninth Circuit’s holding that federal agencies must reinitiate consultation pursuant to Section 7 of the ESA on a completed agency action at the programmatic level because the agency retains discretion to authorize site-specific projects governed by the programmatic action has no basis in the ESA or its implementing regulations. The Ninth Circuit’s decision, if allowed to stand, would impose substantial burdens on federal agencies. The decision also direct-ly conflicts with a decision of the Tenth Circuit and cannot be reconciled with this Court’s decision in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (SUWA). Review by this Court is war-ranted.

A. The Court of Appeals Erred In Holding That Respond-ent Has Article III Standing

A straightforward application of this Court’s deci-sion in Summers demonstrates that respondent failed to establish Article III standing to challenge the For-est Service’s failure to reinitiate consultation on the Lynx Amendments. The Ninth Circuit’s decision authorizes an environmental group to seek broad relief affecting 18 different NFS units, and site-specific projects within those forests, without chal-lenging even one such project that could injure even one specific member.

1. Respondent seeks to compel agency action that does not directly regulate its conduct or the conduct of its members. “[W]hen the plaintiff is not [it]self the object of the government action or inaction [it] chal-lenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” Lujan v.

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Defenders of Wildlife, 504 U.S. 555, 562 (1992) (De-fenders of Wildlife) (quoting Allen v. Wright, 468 U.S. 737, 758 (1984)). Respondent “can demonstrate stand-ing only if application of the [Lynx Amendments] by the Government will affect” respondent in a way that threatens to impose an “  ‘injury in fact’ that is con-crete and particularized.” Summers, 555 U.S. at 493-494 (citation omitted). “[T]he threat,” moreover, “must be actual and imminent, not conjectural or hypothetical.” Id. at 493. Indeed, an injury must be “  ‘certainly impending’ to constitute injury in fact.” Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quot-ing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). That requirement “ensure[s] that the alleged injury is not too speculative for Arti-cle III purposes,” Defenders of Wildlife, 504 U.S. at 565 n.2, and “that ‘there is a real need to exercise the power of judicial review in order to protect the inter-ests of the complaining party,’  ” Summers, 555 U.S. at 493 (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974)).

In Summers, the Court applied these well-established standing principles to reject a challenge by environmental groups to the Forest Service’s adop-tion of regulations setting out general (non-project-specific) rules governing administrative review of some future projects. 555 U.S. at 490-491. The plain-tiff organizations challenged both the regulations themselves and a particular application of the regula-tions to a timber sale known as the Burnt Ridge Pro-ject. Id. at 491. By the time the case came to this Court, the parties had settled their dispute concerning the Burnt Ridge Project, leaving only the plaintiffs’ challenge to the regulations in the abstract. Id. at

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491-492, 494. This Court held that the plaintiff organ-izations did not have standing to challenge the regula-tions after the settlement because they failed to demonstrate that the government had applied the regulations to any other particular project that would imminently harm one of the plaintiffs’ members. Id. at 492-496. The Court also rejected the plaintiffs’ contention that “they ha[d] standing to bring their challenge because they ha[d] suffered procedural injury,” holding that “deprivation of a procedural right without some concrete interest that is affected by the deprivation—a procedural right in vacuo—is insufficient to create Article III standing.” Id. at 496. Because the plaintiffs did not challenge any project that had caused or imminently would cause them con-crete harm, the Court found no standing to assert their claimed procedural right. Id. at 496-497.

The Court held in Summers that the plaintiffs’ affi-davits were insufficient to establish an imminent inju-ry because they did not identify any specific project that caused concrete harm to a plaintiff. 555 U.S. at 492-500. Because the declarations submitted in this case by respondent’s members suffer from the same flaws as the Summers affidavits, the court of appeals clearly erred in holding that respondent established standing. The court of appeals relied on three mem-bers’ declarations, see App., infra, 11a, none of which meets the standing requirements set forth in Sum-mers, see id. at 78a-89a (declarations). The crux of respondent’s claim is that its members will be injured by the Forest Service’s decision to engage in Section 7 consultation about lynx critical habitat in connection with individual on-the-ground projects rather than with respect to the Lynx Amendments in the abstract.

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In order to have standing to seek adjudication of such a claim by an Article III court, respondent must therefore establish that the timing and subject of the Section 7 consultation on lynx critical habitat has caused or will imminently cause at least one of its members to suffer a concrete harm to a cognizable interest. In other words, respondent must challenge a specific project that has caused harm or imminently threatens harm to lynx critical habitat—and in turn has caused or imminently threatens harm to the abil-ity of its members to observe lynx—that likely would not have occurred had the Forest Service reinitiated consultation on the Lynx Amendments. Respondent has failed to do that.

Respondent’s member declarations do establish certain elements of standing. Each identifies a cog-nizable interest in looking for lynx while recreating in the NFS units covered by the Lynx Amendments; each alleges that the declarant recreates in lynx criti-cal habitat areas located in such areas; and each as-serts that the declarant has concrete plans to visit such areas in the near future. App., infra, 78a-89a. But no declaration is sufficient to establish respond-ent’s standing because no declaration identifies a concrete injury that has resulted (or will imminently result) from the Forest Service’s decision to consult on lynx critical habitat at the project level, rather than at the Lynx Amendments level. The declarations speculate that unidentified projects may adversely affect lynx and lynx critical habitat. Id. at 80a, 85a, 88a. “If  ” such effects occur, each declarant states, the declarant will suffer injury to his or her cognizable interest. Ibid. But Summers reaffirmed that that type of contingent conjecture cannot establish Article

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III standing. “To seek injunctive relief,” the Court explained, “a plaintiff must show that he is under threat of suffering ‘injury in fact’  ” and that such threat is “actual and imminent, not conjectural or hypothetical.” Summers, 555 U.S. at 493 (citation omitted). Respondent’s if-then speculation is not suf-ficient to clear that hurdle.

The court of appeals found respondent’s member declarations to be sufficient because the declarations established that the members “have a relationship to the areas affected by” two specific projects. App., infra, 13a. But respondent has expressly disclaimed an intention to challenge any specific project, includ-ing the projects mentioned in its member declarations. C.A. E.R. 315; see App., infra, 59a. And none of the declarations identifies a concrete harm flowing from any specific project. See App., infra, 77a (plaintiffs “make no showing” that “harm is likely to occur de-spite the site-specific analysis” for the Bozeman and East Boulder Projects). Indeed, when the Forest Service engaged in consultation under ESA Section 7 on those two projects, FWS’s biological opinions found that neither project was likely to result in the destruc-tion or adverse modification of lynx habitat. C.A. E.R. 93, 137; App., infra, 52a. Respondent has not chal-lenged either project or FWS’s determinations under the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq., and those determinations therefore are con-trolling. Summers makes clear that merely identify-ing a relationship to a geographical area governed by a programmatic plan is insufficient to establish stand-ing.

The court of appeals flouted the lessons of Sum-mers when it rejected the government’s argument

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“that [respondent] must establish how the failure to reinitiate a consultation on the Lynx Amendments would lead to different, injurious results at the pro-ject-specific level” because respondent asserts “a procedural violation.” App., infra, 15a. It is true that respondent was not “required to establish what a Section 7 consultation would reveal, or what standards would be set, if the Forest Service were to reinitiate consultation.” Ibid. But Summers leaves no doubt that respondent was required to allege that some concrete injury had resulted or would imminently result from some specific on-the-ground action taken consistent with the guidance in the Lynx Amendments as a result of the absence of a reinitiation of consulta-tion by the Forest Service. 555 U.S. at 495 (finding no standing based on plaintiffs’ “failure to allege that any particular timber sale or other project claimed to be unlawfully subject to the regulations will impede a specific and concrete plan of [the affiants] to enjoy the National Forests.”). That respondent asserts a “pro-cedural” violation does not excuse it from complying with the usual standing requirements with respect to injury: “Unlike redressability, * * * the require-ment of injury in fact is a hard floor of Article III jurisdiction that cannot be removed by statute.” Id. at 497. And this Court has repeatedly found that com-plaints about an agency’s alleged failure to follow the law, absent a showing that such an alleged failure caused a concrete injury to a plaintiff, are insufficient to establish standing. Defenders of Wildlife, 504 U.S. at 573-574; see Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013).

2. The Ninth Circuit’s refusal to follow Summers conflicts with decisions of at least three other courts

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of appeals, all of which concluded in the environmental context that a plaintiff lacked standing to challenge regulations or other programmatic determinations applicable to a potentially broad geographic area when the plaintiff had not identified any specific ap-plication of the challenged rule that imminently threatened harm to the plaintiff.

In Heartwood, Inc. v. Agpaoa, 628 F.3d 261 (2010), the Sixth Circuit held that an organization lacked standing to challenge a forest plan through a specific project because it had failed to establish that the Forest Service was “undertaking or threatening to undertake activities that cause or threaten harm to the plaintiff  ’s protected interests.” Id. at 267 (quoting Center for Biological Diversity v. Lueckel, 417 F.3d 532, 537 (6th Cir. 2005)). Although the affiants in that case had identified a project they alleged would harm their recreational interests—which respondent failed to do in this case—the Sixth Circuit found the affi-davits inadequate to establish standing because they had not specified a particular portion of the 25,000-acre project area (or of the 5000-acre commercial-logging area) “that they use and will continue to use, and that agency action will detrimentally affect.” Id. at 268.

Similarly, the Seventh Circuit in Pollack v. United States Department of Justice, 577 F.3d 736 (2009), cert. denied, 559 U.S. 1006 (2010), held that the plain-tiff lacked standing to challenge the United States military’s discharge of lead bullets into an area of Lake Michigan covering 2975 acres. Id. at 737, 743. Applying Summers, the court held that the plaintiff  ’s assertions that he “fear[ed] that his water had been contaminated by lead from bullets [did] not give rise

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to standing.” Id. at 741. Because the plaintiff  ’s asser-tions were “[w]ithout some support” that he would be concretely affected by the activity he complained of, the court found that he lacked standing. Id. at 742. The Seventh Circuit has also held, in conflict with the court of appeals’ decision below, that “the denial of a ‘procedural right, unconnected to a plaintiff  ’s concrete harm, is not enough to convey standing.’ ” Bensman v. United States Forest Serv., 408 F.3d 945, 952 (2005) (quoting Heartwood, Inc. v. United States Forest Serv., 230 F.3d 947, 952 (7th Cir. 2000) (Heartwood)).

Finally, in National Ass’n of Home Builders v. EPA, 667 F.3d 6 (2011) (NAHB), the D.C. Circuit held that the plaintiff organization lacked standing to chal-lenge a determination by the Environmental Protec-tion Agency (EPA) that two reaches of the Santa Cruz River were traditional navigable waterways subject to regulation under the Clean Water Act (CWA), 33 U.S.C. 1251 et seq. Noting that EPA had not desig-nated any particular “watercourse” in the Santa Cruz River watershed as subject to CWA jurisdiction, the court concluded that the plaintiff  ’s members “face[d] only the possibility of regulation, as they did before the [challenged] determination.” NAHB, 667 F.3d at 13. That increased risk of regulation, the court held, was not sufficient to confer standing because the or-ganization had not asserted that any of its members planned to discharge contaminants into a watercourse likely to be subject to the CWA “anytime soon.” Id. at 14-15.

Under the Sixth, Seventh, and D.C. Circuits’ cor-rect applications of Summers, the instant case would have been dismissed for lack of standing. The need for this Court to resolve the circuit split perpetuated

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by the decision below is particularly acute because the result of that decision is that an organization may seek broad injunctive relief against a general regulation or plan and project-specific decisions applying it—without challenging or even identifying a specific on-the-ground project affected by the rule that injures or threatens to injure a member—as long as it files suit within the Ninth Circuit.

3. The standing question presented here is of broad importance. Approximately 30% of the land in the United States is owned by the federal govern-ment1 and the majority of that land is managed by the Forest Service2 or the Bureau of Land Management (BLM). 3 Both agencies manage their lands through land-use plans. See 16 U.S.C. 1604(a); 43 U.S.C. 1712. If the Ninth Circuit’s decision were allowed to stand, the Forest Service and BLM would be substantially hampered in their ability to implement regulations and management plans because they would be open to immediate challenge regardless of what future decision-making concerning actual on-the-ground projects might occur that could prevent or minimize any potential harms the plaintiffs hypothesize.

Plaintiffs also would be allowed to usurp the government’s role in land management without demonstrating that they will be imminently injured by any decision approving a particular project and with-

1 See http://www.gsa.gov/graphics/ogp/Annual_Report__FY-

2003-R4_R2M-n11_0Z5RDZ-i34K-pR.pdf (over 671 million acres owned by the federal government).

2 See http://www.fs.fed.us/land/staff/ (last visited May 12, 2016) (over 192 million acres managed by the Forest Service).

3 See http://www.blm.gov/wo/st/en/prog/planning.html (last visit-ed May 12, 2016) (over 245 million acres managed by BLM).

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out following the procedures for challenging a particu-lar project. A single plaintiff that cannot identify any concrete and imminent injury should not be permitted to question the regulation of millions of acres of federally-owned lands by filing a suit challenging a programmatic policy at the highest level of generality.

In 2013, the Court granted the government’s peti-tion for a writ of certiorari in Pacific Rivers Council v. United States Forest Service, 689 F.3d 1012 (9th Cir. 2012), 133 S. Ct. 1582 (2013), which raised the same standing issue. The writ was ultimately dis-missed when the environmental-group respondent opted to dismiss its complaint, resulting in vacatur of the Ninth Circuit’s decision in its favor, rather than to defend that decision in this Court. See United States Forest Serv. v. Pacific Rivers Council, 133 S. Ct. 2843 (2013). This case presents another opportunity to correct the Ninth Circuit’s flawed approach to stand-ing.

B. Review Is Also Warranted Because Respondent’s Pro-grammatic Challenge Is Not Ripe For Review

For reasons similar to those given in Part A, supra, respondent’s challenge to the Lynx Amendments is not ripe for review. As this Court held in Abbott La-boratories v. Gardner, 387 U.S. 136 (1967), “[t]he injunctive and declaratory judgment remedies are discretionary, and courts traditionally have been re-luctant to apply them to administrative determina-tions unless these arise in the context of a controversy ‘ripe’ for judicial resolution.” Id. at 148. Absent a challenge to a site-specific decision in which the Lynx Amendments are applied, respondent’s challenge to the Lynx Amendments, whether on ESA or other grounds, is an “abstract disagreement[] over adminis-

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trative policies” that seeks “judicial interference [be-fore] an administrative decision has been formalized and its effects felt in a concrete way by the challeng-ing parties.” Id. at 148-149.

1. a. In assessing whether a claim is ripe for judi-cial review, this Court examines both the “fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs., 387 U.S. at 149. In particular, the Court de-termines: “(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial inter-vention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998). Each of those factors demonstrates that respondent’s ESA challenge is not ripe.

First, postponing review until respondent chal-lenges a site-specific project that threatens immediate injury to one of respondent’s members would not harm respondent because it will be able to raise ESA objections in a suit challenging such a project. In such a suit, if the court concluded that the Forest Service did not comply with Section 7 of the ESA when it failed to reinitiate consultation after designation of lynx critical habitat and that that failure adversely affected the project, the court could set aside the decision approving the particular project on that ground.

The Lynx Amendments themselves, however, do not regulate the primary conduct of respondent or its members. Cf. Abbott Labs, 387 U.S. at 153. They “do not command anyone to do anything or to refrain from

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doing anything.” Ohio Forestry, 523 U.S. at 733. They similarly do not “grant, withhold, or modify any formal legal license, power, or authority”; “subject anyone to any civil or criminal liability”; or “create [any] legal rights or obligations.” Ibid. Nor do the Lynx Amendments authorize any action to be taken within National Forests or “abolish anyone’s legal authority to object” to any such action in the future. Ibid. If a site-specific action to which the Lynx Amendments are applied ever causes harm to one of respondent’s members, respondent would be able to challenge the programmatic amendments at that time insofar as they adversely affected the project. Id. at 734. Focusing a challenge on a site-specific project to which the Lynx Amendments are applied will cause respondent no harm.

The court of appeals reasoned that respondent’s claim is ripe because any additional measures that the Forest Service might adopt to protect lynx and lynx critical habitat “would apply only at the project-specific level, not the programmatic level in dispute.” App., infra, 19a. That reasoning reflects a lack of understanding about the purpose and operation of forest plans; protective measures in a forest plan always apply only at the project-specific level. Re-quiring consultation earlier and at a higher level of generality—when no specifics will be known about future ground-disturbing activity—will not result in earlier or broader application of protective measures. Before any ground-disturbing activities may occur, the Forest Service will consult with FWS about the potential effects of a proposed project, as it has done with the two projects the court of appeals identified. See id. at 13a-14a. Those consultations were not lim-

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ited to the effects the projects would have on the (rel-atively) local level of the particular Lynx Analysis Unit (which covered 87,000 and 103,000 acres, respec-tively). C.A. E.R. 91, 131, 134. Those project-specific consultations also considered potential effects at the “programmatic level,” App., infra, 19a, by considering effects on the Critical Habitat Unit (which covers more than six million acres) caused by the specific project itself and cumulatively by the project in con-junction with other relevant activity. C.A. E.R. 131; see id. at 80-97, 125-140 (biological opinions for specif-ic projects). Critically, the biological opinions for both of the projects the Ninth Circuit discussed concluded that the projects were not likely to result in the de-struction or adverse modification of lynx critical habi-tat. Id. at 93, 137. Because respondent did not chal-lenge those projects or conclusions, those findings of no adverse modification must be taken as a given in this case.

Second, as was true of the NFMA claim in Ohio Forestry, allowing a facial ESA challenge to the Lynx Amendments to proceed at this point would “hinder agency efforts to refine its policies” through future plan revisions or review of site-specific proposals. 523 U.S. at 735. The Forest Service will conduct more environmental analysis—including an ESA analysis that will encompass consideration of potential effects (site-specific and cumulative) on lynx critical habitat—before it authorizes any ground-disturbing actions by approving a specific project. That analysis may lead the Forest Service to mitigate or eliminate potential harm by restricting a project’s location, by tailoring or limiting its scope or effect, or by instituting additional protective measures. For example, the Forest Service

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may never approach the Lynx Amendments’ cap on ground-disturbing activities in lynx critical habitat after examining site-specific projects in greater detail, including their cumulative effects; or the Forest Ser-vice, after consultation with FWS, may impose more protective measures on a project than the Lynx Amendments require. As this Court has explained, “[a] claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as antici-pated, or indeed may not occur at all.’  ” Texas v. Unit-ed States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-581 (1985)).

Third, courts would benefit by deferring considera-tion of any programmatic challenges to the Lynx Amendments, whether on ESA or other grounds, until the Forest Service applies them to a specific project in a concrete way. Because the Lynx Amendments themselves entail no commitment of resources having any on-the-ground effect, judicial consideration of the sufficiency of the Forest Service’s ESA analysis in connection with the Lynx Amendments standing alone would be abstract and premature. See National Park Hospitality Ass’n v. Department of the Interior, 538 U.S. 803, 812 (2003) (concluding that facial challenge to regulations “should await a concrete dispute about a particular” application); Texas, 523 U.S. at 301 (“The operation of [a challenged] statute is better grasped when viewed in light of a particular application.”).

b. The rule that a plaintiff may not invoke the APA to seek judicial review of an agency regulation (or, here, a set of forest-plan amendments) unless and until it is applied in a concrete way is not limited to ESA or environmental challenges. It is a rule of gen-

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eral applicability. See, e.g., Reno v. Catholic Soc. Servs., Inc., 509 U.S 43, 58 (1993) (reasoning in an immigration case that, when a regulation does not govern the plaintiff  ’s primary conduct, “a controversy concerning a regulation is not ordinarily ripe for re-view under the [APA] until the regulation has been applied to the claimant’s situation by some concrete action”). And within the specific context at issue here—a challenge to forest plan amendments—there is no reason to apply different rules governing judicial review depending on whether the plaintiff alleges an ESA violation or a violation of some other law. Each type of challenge is to the plan, and each should be asserted as part of a challenge to the plan’s applica-tion to a site-specific project. Because judicial review of the programmatic provision in the context of a specific application is an “adequate remedy,” see 5 U.S.C. 704, for any legal defect in the provision, a general challenge before that point is premature and unripe under the APA. The Lynx Amendments to the forest plans, like the “regulation” referred to in Lujan v. National Wildlife Federation, 497 U.S. 871, 890-894 (1990), are broad provisions of general applicability and should be subject to the same standards govern-ing judicial review.

2. The Ninth Circuit’s rule that “procedural” chal-lenges to programmatic decisions always are ripe when the decisions are made conflicts with the rule applied in the D.C. Circuit. In Center for Biological Diversity v. United States Department of the Interior, 563 F.3d 466 (2009), for example, plaintiffs challenged the Department of the Interior’s decision to expand leasing areas on the Outer Continental Shelf for off-shore oil-and-gas development, arguing that the agen-

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cy had failed to consult under ESA Section 7. Id. at 482. The D.C. Circuit held that the plaintiffs’ ESA challenge was unripe due to the “multi-stage nature of [the] leasing programs” at issue. Id. at 483. The court explained that “the first stage of a leasing program does not cause any harm to anything because it does not require any action or infringe on the welfare of animals,” which “is, by design, only implicated at later stages of the program, each of which requires ESA consultation.” Ibid.

Applying the D.C. Circuit’s rule in this case would require the conclusion that respondent’s challenge to the Lynx Amendments is not ripe.4 The Ninth Cir-cuit’s contrary ruling warrants review by this Court.

C. The Ninth Circuit Erred In Holding That Section 7 Of The ESA Applies To A Completed Programmatic Agency Action That Has No On-The-Ground Effects

On the merits, the court of appeals erred in holding that the Forest Service was required to reinitiate Section 7 consultation on the completed Lynx Amend-ments when FWS designated lynx critical habitat in NFS units covered by the amendments. The Ninth Circuit’s decision cannot be reconciled with this Court’s decision in SUWA, supra, and directly con-flicts with a decision of the Tenth Circuit. The deci-sion is, moreover, contrary to this Court’s admonition that courts must not impose on federal agencies obli-gations that are not found in a governing statute or its

4 The Seventh Circuit has adopted the same approach as the

Ninth Circuit, relying on Ohio Forestry to hold that a plaintiff’s challenge to a programmatic rule was ripe for review even absent application of the rule to a site-specific project. Heartwood, 230 F.3d at 952-953.

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implementing regulations, and the flaws in the court of appeals’ merits holding are of a piece with the flaws in its justiciability analysis. If allowed to stand, the decision would impose significant negative conse-quences on federal agencies. The court of appeals’ ESA holding therefore warrants this Court’s review.

1. Section 7 of the ESA requires a federal agency to consult with either FWS or NMFS on “any action authorized, funded, or carried out by such agency” to “insure” that such “action” “is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of  ” a listed species’ designated critical habitat. 16 U.S.C. 1536(a)(2). Section 7’s focus on whether an action is “likely to jeopardize” a listed species or result in “adverse modification” of its criti-cal habitat necessarily contemplates that the type of “action” on which an agency must consult has not yet been completed. That commonsense reading of the statutory text is confirmed by the ESA’s implement-ing regulations, which explain that the required con-sultation “is designed to assist” the relevant federal agency “in identifying and resolving potential conflicts at an early stage in the planning process.” 50 C.F.R. 402.10(a) (emphasis added); see, e.g., 50 C.F.R. 402.11(a) (noting that early consultation “reduce[s] the likelihood of conflict between listed species or critical habitat and proposed actions”) (emphasis added), 50 C.F.R. 402.12(b) (explaining that a “biological assess-ment shall be completed before any contract for con-struction is entered into and before construction is begun”). In addition, the regulatory definition of “action” includes a non-exhaustive list of examples that suggest future action rather than the mere con-

29

tinued existence of already completed action. See, e.g., 50 C.F.R. 402.02(b) (“the promulgation of regula-tions”) and (c) (“the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid”) (emphases added).

The adoption, amendment, or revision of a forest plan, once finalized, is a completed agency action. That a forest plan continues to exist and to contain guidelines for other (future) agency action does not mean that the forest plan is itself an ongoing action, any more than the continued existence of a regulation qualifies as an ongoing action (or ongoing rulemak-ing).

In SUWA, this Court considered whether NEPA required BLM to undertake supplemental environ-mental analysis on an existing land-use plan when new information came to light after the plan’s adoption. 542 U.S. at 60-61, 73. NEPA requires such analysis for any “major Federal action[]” proposed by an agen-cy. Id. at 73; 42 U.S.C. 4332(2)(C). This Court held that, “although the ‘[a]pproval of a [land use plan]’ is a ‘major Federal Action’ requiring” environmental analysis pursuant to NEPA, “that action is completed when the plan is approved.” SUWA, 542 U.S. at 73 (brackets in original) (quoting 43 C.F.R. 1601.0-6). The Court held that supplemental NEPA analysis was therefore not required on the completed land-use plan—unless or until BLM amended the plan. Ibid. Although NEPA uses the phrase “major Federal action,” 42 U.S.C. 4332(2)(C), and the ESA uses the phrase “any action,” 16 U.S.C. 1536(a)(2), the Court’s holding that a land-use plan is a completed major federal action under NEPA requires the conclusion that it is also a completed “action” under the ESA.

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The Ninth Circuit did not disagree with the gov-ernment’s argument that the Lynx Amendments were completed agency action once they were incorporated into the relevant forest plans. See App., infra, 22a n.12 (declining to address that issue). Instead, the court considered it “irrelevant” that “the process of incorporating the Lynx Amendments into the Forest Plans was complete when FWS designated lynx criti-cal habitat on National Forest land.” Id. at 25a. The court relied on the ESA regulation requiring reinitia-tion of Section 7 consultation “where discretionary Federal involvement or control over the action has been retained or is authorized by law” and a trigger-ing event (such as the designation of critical habitat) occurs. Id. at 22a (quoting 50 C.F.R. 402.16); see id. at 24a. The Ninth Circuit reasoned that the Forest Service retains control over a forest plan both because it retains the continuing ability to approve or control site-specific plans consistent with the guidance of the plan and because it retains the ability to amend a forest plan at any time. Id. at 24a, 26a. That reason-ing is incorrect.

It is true that the Forest Service has the continuing authority to approve (or not approve) a proposed site-specific project after evaluating whether the project is consistent with the plan itself. But that authority does not amount to discretionary involvement or control over the completed action that is the amendment of multiple forest plans. The agency has no discretion about whether to follow the guidance in the applicable forest plan when deciding whether to approve a site-specific project. See 16 U.S.C. 1604(i). The Forest Service has authority to approve a new action (the project), which itself triggers a new duty of consulta-

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tion under Section 7—just as an agency’s decision to undertake a new project that is governed by existing regulations is a new and discrete action, not the exer-cise of continuing discretionary control over the al-ready-promulgated regulation. The Forest Service’s ability to amend a forest plan also does not amount to continuing control over the existing forest plan. Any amendment to a forest plan is a new action, which can be conducted only through a formal process and would be subject to Section 7’s consultation requirements, just as an agency’s decision to amend an existing regulation is a new action.

The Ninth Circuit’s contrary conclusion amounts to a holding that, whenever a triggering event occurs, a federal agency must reinitiate consultation on every completed programmatic plan and existing regulation if the guidance in such a plan or regulation will govern future agency action or if the agency has the authority to amend or repeal the existing plan or regulation. That is a stunning conclusion from the practical per-spective of managing scarce agency resources—and it is a conclusion that finds no support in the ESA, its implementing regulations, or this Court’s decisions. Section 7 does not require that consultation under the Act take place in any particular manner; it simply directs the action agency to “insure,” in consultation with and with the assistance of FWS or NMFS, that its actions are not likely to jeopardize the continued existence of a listed species or adversely modify a species’ critical habitat. Section 7 therefore provides no basis for a court to order that consultation be car-ried out in some other manner where, as here, the relevant agencies have determined, based on the ab-sence of any on-the-ground effects, that consultation

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on site-specific actions and future plan amendments will be sufficient to insure protection for newly identi-fied critical habitat. The court of appeals’ contrary holding compels the responsible agencies to divert scarce public resources to the fulfillment of potentially cumbersome procedural measures that both agencies have determined to be unnecessary to achieve compli-ance with the ESA.

2. The Ninth Circuit’s decision directly conflicts with the Tenth Circuit’s decision in Forest Guardians v. Forsgren, 478 F.3d 1149 (2007). In that case, an environmental group argued that the Forest Service was required to reinitiate Section 7 consultation on existing forest plans after FWS listed the lynx as a threatened species. Id. at 1151. Relying on this Court’s decision in SUWA, the Tenth Circuit held that, because existing forest plans are completed actions just as an existing regulation is a completed action, forest plans are not subject to Section 7’s con-sultation requirement on an ongoing basis. Id. at 1154-1155 (“Once the [forest plan] is in place, ‘agency action’ takes place at the project level.”). After noting its disagreement with the Ninth Circuit’s holding in Pacific Rivers Council v. Thomas, 30 F.3d 1050 (1994), cert. denied, 514 U.S. 1082 (1995), that forest plans are ongoing agency action, the Tenth Circuit explained that “[w]hat [the plaintiffs] seek in this case is nothing short of a wholesale review of two [forest plans] under the guise of § 7(a)(2) consultation.” Forest Guardians, 478 F.3d at 1159-1160. Although that result may have been “simpler and more cost effective” for the plaintiff, the Tenth Circuit ex-plained, such benefits “cannot justify skirting the ‘agency action’ requisite to a § 7(a)(2) consultation.”

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Id. at 1160. The Ninth Circuit’s contrary conclusion in this case is incorrect and warrants this Court’s re-view.5

3. The real-world effects of the Ninth Circuit’s de-cision affirming the court-ordered consultation are significant.

The court of appeals’ holding—which finds no sup-port in the ESA, its implementing regulations, or this Court’s decisions—that land-management agencies are required to reinitiate Section 7 consultation on completed forest plans that do not authorize any ground-disturbing activities any time a new species is listed, new critical habitat is designated, or any new pertinent information on a listed species becomes available, has the potential to cripple the Forest Ser-vice and BLM’s land-management functions, and to impose substantial and unwarranted burdens on FWS and NMFS. The Ninth Circuit covers a territory that contains more than 300 million acres of federal lands.6 Within that area, we are informed that the Forest Service administers 66 land-use plans and BLM ad-ministers 103 land-use plans. The geographic area of the Ninth Circuit contains more than 850 listed spe-

5 In 1995, the Court denied the government’s petition seeking

review of the Ninth Circuit’s 1994 decision in Pacific Rivers Coun-cil v. Thomas. See Thomas v. Pacific Rivers Council, 514 U.S. 1082 (1995). In the intervening years, this Court decided SUWA, the conclusion of which is inconsistent with the Ninth Circuit’s approach in this area, and the Tenth Circuit created a circuit split with its decision in Forest Guardians. This Court’s review is therefore warranted at this time.

6 See http://www.fs.fed.us/land/ staff/lar/LAR2015/lar2015in-dex.html (Tbl. 6) (State-by-State listing of NFS acreage managed by Forest Service); http://www.blm.gov/public_land_statistics/pls-14/pls2014.pdf (Tbl. 1-4) (same for BLM).

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cies and more than 50 additional species have been proposed for listing as of the filing of this petition.7 The sheer volume of agency resources that would be required to adhere to the Ninth Circuit’s expansive view of when Section 7 consultation must be reinitiat-ed on a completed action underscores the need for this Court’s review.8 Nor are the management problems that the Ninth Circuit’s rule creates limited to Forest Service and BLM actions or to land-use plans, because the reasoning of the decision applies to all completed programmatic actions that will govern future action by an agency.

Review of the Ninth Circuit’s erroneous merits de-cision is warranted to prevent the imposition of bur-densome duties that are unmoored from the governing statutory and regulatory regime. But the Ninth Cir-cuit erred in even reaching the merits, because the case should have been dismissed on standing or ripe-ness grounds. Review of the Ninth Circuit’s rulings on those threshold issues is warranted as well.

7 See http://ecos.fws.gov/tess_public/reports/ad-hoc-species-

report-input (last visited May 12, 2016) (species searchable by State/territory and status).

8 After the Ninth Circuit’s 1994 decision in Pacific Rivers Coun-cil, the Forest Service and BLM entered into a Memorandum of Agreement with FWS and NMFS to attempt to grapple with the “substantial new work load” created by that decision by streamlin-ing the consultation process. Gov’t C.A. Br. Addendum 63. After this Court’s decision in SUWA, the Forest Service and BLM concluded that the 1994 Pacific Rivers Council decision was no longer good law and that the agencies were no longer required to reinitiate consultation on completed forest plans, even within the Ninth Circuit. See id. at 46 (2008 BLM Manual); Forest Guardi-ans, 478 F.3d at 1154-1155.

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CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

JEFFREY PRIETO General Counsel Department of Agriculture

DONALD B. VERRILLI, JR. Solicitor General

JOHN C. CRUDEN Assistant Attorney General

EDWIN S. KNEEDLER Deputy Solicitor General

SARAH E. HARRINGTON Assistant to the Solicitor

General ANDREW C. MERGEN DAVID C. SHILTON JOHN H. MARTIN ALLEN M. BRABENDER

Attorneys

JUNE 2016

(1a)

APPENDIX A

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

DISTRICT OF MONTANA, MISSOULA

No. 13-35624 and No. 13-35631 D.C. No. 9:12-cv-00045-DLC

COTTONWOOD ENVIRONMENTAL LAW CENTER, PLAINTIFF-APPELLEE

v.

UNITED STATES FOREST SERVICE AND FAYE KRUEGER, IN HER OFFICIAL CAPACITY AS REGIONAL FORESTER FOR

THE U.S. FOREST SERVICE, REGION ONE, DEFENDANTS-APPELLANTS

[Dec. 17, 2015]

ORDER

Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.

The panel has voted to deny Cottonwood’s petition for rehearing and to deny the Forest Service’s petition for rehearing en banc.

The full court has been advised of the petition for re-hearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

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The petition for panel rehearing and the petition for rehearing en banc are DENIED.

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APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Nos. 13-35624, 13-35631 D.C. No. 9:12-cv-00045-DLC

COTTONWOOD ENVIRONMENTAL LAW CENTER, PLAINTIFF-APPELLEE/CROSS-APPELLANT

v.

UNITED STATES FOREST SERVICE; FAYE KRUEGER, IN HER OFFICIAL CAPACITY AS REGIONAL FORESTER

FOR THE U.S. FOREST SERVICE, REGION ONE, DEFENDANTS-APPELLANTS/CROSS-APPELLEES

Argued and Submitted: July 7, 2014—Portland, Oregon

Filed: June 17, 2015

OPINION

Appeal from the United States District Court for the District of Montana

DANA L. CHRISTENSEN, Chief District Judge, Presiding

Before: HARRY PREGERSON, RICHARD A. PAEZ, and PAUL J. WATFORD, Circuit Judges.

PAEZ, Circuit Judge:

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Opinion by Judge PAEZ; Partial Concurrence and Partial Dissent by Judge PREGERSON

In 2000, the United States Fish and Wildlife Service (“FWS”) listed the Canada lynx, a snow-sturdy cousin to the bobcat, as a threatened species under the Endangered Species Act of 1973 (“ESA”), 16 U.S.C. § 1531 et seq. FWS designated critical habitat for the Canada lynx in 2006, but did not include any National Forest System land. Subsequently, the United States Forest Service (“Forest Service”) issued standards and guidelines for land management activities on National Forest land that responded to FWS’s listing and designation decisions. The Forest Service then initiated consultation with FWS under Section 7 of the ESA, 16 U.S.C. § 1536(a)(2). FWS determined that the Forest Service’s standards and guidelines did not jeopardize the Canada lynx. Shortly after completing the consultation process, FWS discov-ered that its decisions relating to the designation of criti-cal habitat for the Canada lynx were flawed. After re- evaluating the data, FWS designated extensive National Forest land as critical habitat.

In this case, we must decide whether the district court properly determined that the Forest Service violated the ESA when it decided not to reinitiate consultation after the FWS revised its critical habitat designation to include National Forest land. Before doing so, however, we ad-dress the Forest Service’s arguments that Cottonwood lacks standing to bring its claim and that the claim is not ripe for review. Because we conclude that Cottonwood’s claim is justiciable, and that the Forest Service violated the ESA, we proceed to consider whether the district court erred in denying injunctive relief to Cottonwood. Although we affirm the district court’s ruling, we remand

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for further proceedings to allow Cottonwood an oppor-tunity to make the necessary showing in support of in-junctive relief.

I. Background

In 2000, after eight years of litigation by conserva-tion groups, FWS listed the distinct population segment of Canada lynx in the contiguous forty-eight states as a threatened species. Endangered and Threatened Wild-life and Plants; Determination of Threatened Status for the Contiguous U.S. Distinct Population Segment of the Canada Lynx and Related Rule, 65 Fed. Reg. 16052-01, 16052, 16061 (Mar. 24, 2000). Six years later, FWS des-ignated 1,841 square miles of land as critical habitat for the Canada lynx. Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Con-tiguous United States Distinct Population Segment of the Canada Lynx, 71 Fed. Reg. 66008-01, 66030 (Nov. 9, 2006). The designation included 1,389 square miles in the Northern Rocky Mountains “critical habitat unit.”1 FWS did not, however, designate any National Forest land as critical habitat.

In March 2007, the Forest Service adopted the Northern Rocky Mountains Lynx Management Direction, which is commonly referred to as the “Lynx Amend-ments.” The Lynx Amendments were designed to “in-corporate management direction in land management

1 FWS divides critical habitat for the Canada lynx into five units,

including: Maine (“Unit 1”), Minnesota (“Unit 2”), Northern Roc-ky Mountains (“Unit 3”), North Cascades (“Unit 4”), and Greater Yellowstone Area (“Unit 5”). Endangered and Threatened Wild-life and Plants; Revised Designation of Critical Habitat for the Contiguous United States Distinct Population Segment of the Canada Lynx, 74 Fed. Reg. 8616-01 (Feb. 25, 2009).

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plans that conserves and promotes recovery of Canada lynx . . . while preserving the overall multiple-use dir-ection in existing plans.” The Lynx Amendments set specific guidelines and standards for permitting activities that are determined likely to have an adverse effect on Canada lynx. These activities include over-the-snow recreational activity, wildland fire management, pre- commercial forest thinning, and other projects that might affect the Canada lynx. The Forest Service amended the Forest Plans2 for eighteen National Forests to include the Lynx Amendments.

The Forest Service initiated Section 7 consultation with FWS, the consulting agency. FWS issued a biolog-ical opinion (“BiOp”) in March 2007, which determined that the management direction in the Lynx Amendments did not jeopardize the Canada lynx. The BiOp concluded that “[n]o critical habitat has been designated for this species on Federal lands within the [areas governed by the Lynx Amendments], therefore none will be affected.” Just four months later, however, FWS announced that its critical habitat designation had been “improperly influ-enced by then deputy assistant secretary of the Interior Julie MacDonald and, as a result, may not be supported by the record, may not be adequately explained, or may not comport with the best available scientific and com-mercial information.” Endangered and Threatened

2 Pursuant to the National Forest Management Act, 16 U.S.C.

§ 1600 et seq., the Forest Service must promulgate Forest Plans, also known as Land Resource Management Plans, to “guide sus-tainable, integrated resource management of the resources within the plan area in the context of the broader landscape, giving due consideration to the relative values of the various resources in par-ticular areas.” 36 C.F.R. § 219.1(b).

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Wildlife and Plants; Revised Designation of Critical Habitat for the Contiguous United States Distinct Pop-ulation Segment of the Canada Lynx, 74 Fed. Reg. 8616-01, 8618 (Feb. 25, 2009). In 2009, FWS revised its critical habitat designation upward from 1,841 square miles to 39,000 square miles. Id. at 8642. The revised designation included more than 10,000 square miles in the Northern Rocky Mountains critical habitat unit. Id. Unlike the 2006 designation, the 2009 revised designation identified critical habitat in eleven National Forests. Despite this significant addition of critical habitat in the National Forests, the Forest Service declined to reinitiate Section 7 consultation with FWS on the Lynx Amend-ments. Thereafter, FWS issued BiOps determining that two projects within the Gallatin Forest, considered occu-pied by the Canada lynx, were unlikely to modify or ad-versely affect the lynx’s critical habitat.3

In 2012, the Cottonwood Environmental Law Center (“Cottonwood”) filed this action in district court alleging that the Forest Service violated the ESA by failing to re-initiate consultation. The parties filed cross-motions for summary judgment. The court ruled that the revised designation of critical habitat for the Canada lynx re-quired reinitiation of Section 7 consultation on the Lynx Amendments. Salix v. U.S. Forest Serv., 944 F. Supp. 2d 984, 986 (D. Mont. 2013). Although the court granted summary judgment to Cottonwood and ordered reinitia-tion of consultation, it declined to enjoin any specific pro-ject. Salix, 944 F. Supp. 2d at 1000-02.

The parties filed timely cross-appeals.4

3 See infra notes 6 and 8. 4 We have jurisdiction pursuant to 28 U.S.C. § 1291.

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II. Standard of Review

We review de novo a district court’s decisions on cross-motions for summary judgment. Hoopa Valley Indian Tribe v. Ryan, 415 F.3d 986, 989 (9th Cir. 2005). We also review de novo a district court’s rulings on ques-tions of standing and ripeness. Sierra Forest Legacy v. Sherman, 646 F.3d 1161, 1176 (9th Cir. 2011). We review the denial of injunctive relief for abuse of discretion. Dep’t of Parks & Recreation for State of Cal. v. Bazaar Del Mundo Inc., 448 F.3d 1118, 1123 (9th Cir. 2006).

III. Standing

The Forest Service first argues that Cottonwood lacks Article III standing to challenge the Lynx Amend-ments because it brought a programmatic challenge, ra-ther than a challenge to a specific implementing project that poses an imminent risk of harm to its members. As discussed below, we conclude otherwise.

A.

To establish Article III standing, “a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) con-crete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly tracea-ble to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). An association or organization has standing when “(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s pur-pose; and (c) neither the claim asserted nor the relief re-quested requires the participation of individual members

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in the lawsuit.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). An organization can satisfy the concrete harm requirement by alleging “an in-jury to the recreational or even the mere esthetic inter-ests” of its members. Jayne v. Sherman, 706 F.3d 994, 999 (9th Cir. 2013) (internal quotation marks omitted).

The Forest Service argues that the declarations Cot-tonwood filed in the district court on behalf of its mem-bers do not satisfy Article III standing requirements, as articulated in Summers v. Earth Island Institute, 555 U.S. 488 (2009). In particular, the Forest Service argues that Cottonwood does not have standing because Cot-tonwood only challenges the failure to reinitiate consulta-tion, rather than particular actions that would more dir-ectly injure Cottonwood’s members. In Summers, a group of environmental organizations sought a nation-wide injunction against the enforcement of regulations issued by the Forest Service that exempted small-scale fire-control and timber-salvage projects from the notice, comment, and appeal process that applied to more sub-stantial land management decisions. Id. at 490. Plain-tiffs also specifically challenged a 238-acre salvage sale of timber, called the Burnt Ridge Project, in the Sequoia National Forest. Id. at 491. During the course of litiga-tion, the parties settled their dispute over the Burnt Ridge Project. Id. After the settlement was in place, the district court proceeded to invalidate five regulations and grant a nationwide injunction enjoining their en-forcement. Id. at 492. We affirmed. Id.

Reversing, the Supreme Court held that the plaintiffs failed to establish injury in fact necessary to satisfy Arti-cle III standing requirements. Id. at 494-97. The plain-tiffs filed only one affidavit—from Jim Bensman, a mem-

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ber of one of the plaintiff organizations—that purported to relate a threatened interest beyond the Burnt Ridge Project. Id. at 495. The Court held that Bensman’s representation of general plans to visit “several unnamed National Forests in the future” was insufficient to estab-lish standing because Bensman “fail[ed] to allege that any particular timber sale or other project claimed to be un-lawfully subject to the regulations will impede a specific and concrete plan . . . to enjoy the National Forests.” Id. The Court emphasized that, although Bensman re-ferred to a series of projects in the Allegheny National Forest, Bensman did not “assert . . . any firm intention to visit their locations, saying only that [he] ‘wants to’ go there. . . . Such ‘some day’ intentions—without any description of concrete plans, or indeed any specification of when the some day will be—do not support a finding of . . . ‘actual or imminent’ injury. . . . ” Id. at 496 (in-ternal quotation marks and citations omitted). Thus, the Court concluded that there was “a chance, but . . . hardly a likelihood, that Bensman’s wanderings w[ould] bring him to a parcel about to be affected by a project un-lawfully subject to the regulations.” Id. at 495.

There is a clear contrast between the specificity of Cottonwood’s declarations and Bensman’s affidavit. Cottonwood’s declarations establish that its members extensively utilize specific National Forests where the Lynx Amendments apply and demonstrate their date- certain plans to visit the forests for the express purpose of viewing, enjoying, and studying Canada lynx.5

5 As specified in the 2007 BiOp, the following National Forests

are considered occupied by the Canada lynx: Bridger-Teton, Clearwater, Custer, Flathead, Gallatin, Helena, Idaho Panhandle, Kootenai, Lewis and Clark, Lolo, Shoshone, and the Targhee.

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For instance, the declaration of Sara Jane Johnson describes a twenty-year history of lynx-related recrea-tional activity in the Gallatin, Flathead, and Helena Na-tional Forests with plans to return in “spring and summer of 2013.” Similarly, the declaration of Jennifer Pul-chinski describes several past trips she took to the Gal-latin and Custer National Forests to look for Canada lynx, and her plans to take a similar trip in “mid-July of 2013.” Further, several declarations state that Cottonwood’s members engage in lynx-related recreation within specific project areas that have applied, or will apply, the man-agement direction in the Lynx Amendments. For ex-ample, Joe Milbrath states that he has “already recreated in the Bozeman Watershed Project area, and ha[s] defin-itive plans to ski in the area next spring and to look for signs of Canada lynx.”6 Cottonwood’s members assert that the Forest Service’s failure to reinitiate consultation will cause aesthetic, recreational, scientific, and spiritual injury, in the specific forests and project areas covered by the Lynx Amendments. Unlike Bensman’s affidavit in Summers, these declarations sufficiently establish “a ge-ographic nexus between the individual asserting the claim and the location suffering an environmental impact.” See

The following six National Forests contain lynx habitat, but are not occupied by the Canada lynx: Ashley, Beaverhead-Deerlodge, Bighorn, Bitterroot, Nez Perce, and Salmon-Challis.

6 The Bozeman Municipal Watershed Fuel Reduction Project area is located in the Gallatin National Forest in Montana. The purpose of the project is to treat vegetation and fuel conditions to diminish the impact of wildland fires in the area. The project in-cludes thinning of mature stands and smaller diameter trees, among other strategies. In November 2009, FWS issued a BiOp concluding that the project was “not likely to result in the destruc-tion or adverse modification of lynx critical habitat.”

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W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 485 (9th Cir. 2011) (internal quotation marks omitted); see also Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010).

B.

This is not the first time we have held that a plain-tiff has standing to challenge programmatic management direction without also challenging an implementing pro-ject that will cause discrete injury. In Sierra Forest Legacy, a post-Summers case, we explained that “a pro-cedural injury is complete after [a Forest Plan] has been adopted, so long as [] it is fairly traceable to some action that will affect the plaintiff ’s interests.”7 646 F.3d at 1179. As in Sierra Forest Legacy, Cottonwood properly

7 The Forest Service argues that this is not a procedural rights

case. The Forest Service relies on a misreading of Lujan to sup-port its argument. Although Lujan explained that there can be no standing for the assertion of procedural rights where plaintiffs raise “only a generally available grievance” about the government’s failure to comply with a statutory requirement, the Court recog-nized that procedural rights exist where the violation is connected to a concrete injury. Lujan, 504 U.S. at 573 & n.8. Here, Cot-tonwood does not allege the “deprivation of a procedural right without some concrete interest that is affected by the deprivation . . . ,” Summers, 555 U.S. at 496, but rather “a procedural re-quirement the disregard of which could impair a separate concrete interest of theirs,” Lujan, 504 U.S. at 572. Accordingly, along with other circuits, we have recognized a procedural rights theory of standing in the context of alleged Section 7 violations. See, e.g., Natural Res. Def. Council v. Jewell, 749 F.3d 776, 782-83 (9th Cir. 2014) (en banc); Salmon Spawning & Recovery Alliance v. Guti-errez, 545 F.3d 1220, 1229 (9th Cir. 2008); In re Endangered Spe-cies Act Section 4 Deadline Litig.-MDL No. 2165, 704 F.3d 972, 977 (D.C. Cir. 2013); Sierra Club v. Glickman, 156 F.3d 606, 613 (5th Cir. 1998).

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alleges procedural injury stemming from the Forest Ser-vice’s decision not to reinitiate consultation on the Lynx Amendments. The declarations connect that procedural injury to imminent harm in specific forests and project areas. Cottonwood was not required to challenge direct-ly any specific project because, as in Sierra Forest Lega-cy, the “procedural injury [was] complete.” See id.; see also Jayne, 706 F.3d at 999-1000 (holding that plaintiffs had standing to challenge a programmatic rule without challenging a specific implementing project).

Although the Forest Service acknowledges that Cot-tonwood’s members have a relationship to the areas affected by the Bozeman Municipal Watershed Project and the East Boulder Fuels Reduction Project,8 it argues that Cottonwood “failed to link these projects, or the ab-sence of the reinitiation of programmatic consultation, to any specific injury to its members’ interests.” The For-est Service argues that, because there was Section 7 con-sultation on these individual projects after the revised critical habitat designation, and because there was a de-termination that the projects would not have an adverse impact on lynx critical habitat, no injury resulted from the failure to reinitiate consultation on the Lynx Amend-ments.

The Forest Service’s argument is not persuasive as it overlooks a significant aspect of the consultation process.

8 The East Boulder Fuels Reduction Project area is located in

the Gallatin National Forest in Montana. The purpose of this pro-ject is to reduce hazardous fuel loading in the Wildland Urban In-terface along the East Boulder River drainage by thinning and clearing vegetation across 872 acres. In March 2009, FWS issued a BiOp concluding that this project was “not likely to result in the destruction or adverse modification of lynx critical habitat.”

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Although the Forest Service may initiate Section 7 con-sultation with FWS on individual projects, FWS bases its analysis of those projects largely on the Lynx Amend-ments and corresponding 2007 BiOp.9 For instance, the BiOp for the Bozeman Municipal Watershed Fuel Reduc-tion Project (“Bozeman BiOp”) cites to the Lynx Amend-ments and the 2007 BiOp as primary sources of infor-mation, and states that individual projects will be evalu-ated against the standards and guidelines in the Lynx Amendments. In fact, the Bozeman BiOp frames its ultimate conclusion in terms of those standards: “[w]e have determined that the proposed action is in compliance with the [Lynx Amendments], and that its effects on lynx were included in those anticipated and analyzed in the 2007 biological opinion on the [Lynx Amendments].” Thus, even though individual projects may trigger addi-tional Section 7 scrutiny, that scrutiny is dependent, in large part, on the Lynx Amendments and the 2007 BiOp that were completed before critical habitat was desig-nated on National Forest land. Further, project-specific consultations do not include a unit-wide analysis compa-rable in scope and scale to consultation at the program-matic level.

9 This is consistent with FWS’s own explanation of how a pro-

grammatic Section 7 consultation will affect consultation on imple-menting projects: “In issuing its biological opinion on an action, [FWS’s] finding under section 7(a)(2) entails an assessment of the degree of impact that action will have on a listed species. Once evaluated, that degree of impact is factored into all future section 7 consultations conducted in the area.” Interagency Cooperation- Endangered Species Act of 1973 as Amended; Final Rule, 51 Fed. Reg. 19,926-01, 19,932 (June 3, 1986).

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C.

The Forest Service’s insistence that Cottonwood must establish how the failure to reinitiate consultation on the Lynx Amendments would lead to different, inju-rious results at the project-specific level places an inap-propriate burden on Cottonwood. That is, Cottonwood is not required to establish what a Section 7 consultation would reveal, or what standards would be set, if the For-est Service were to reinitiate consultation. Ideally, that is the objective and purpose of the consultation process. See Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012) (en banc). Thus, where a pro-cedural violation is at issue, a plaintiff need not “meet[] all the normal standards for redressability and immedia-cy.”10 Lujan v. Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992). In such a case, we have explained that “a litigant need only demonstrate that he has a procedural right that, if exercised, could protect his concrete inter-ests and that those interests fall within the zone of inter-ests protected by the statute at issue.” Jewell, 749 F.3d at 783 (internal alterations and quotations omitted). Cottonwood has properly alleged that the reinitiation of consultation could result in the protection of its members’ interests in specific National Forests and project areas where those members recreate. See id. Those interests are clearly within the “zone of interests protected by the [ESA].” See id.

10 As the D.C. Circuit has explained, the doctrine of procedural

rights “relieves the plaintiff of the need to demonstrate that (1) the agency action would have been different but for the procedural vio-lation, and (2) court-ordered compliance with the procedure would alter the final result.” In re Endangered Species Act, 704 F.3d at 977 (internal quotation marks and alterations omitted).

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The standing analysis in this case is strikingly similar to our analysis in Salmon Spawning, 545 F.3d 1220. In Salmon Spawning, an alliance of environmental organi-zations filed suit against several agencies for failing to reinitiate Section 7 consultation after new information emerged about protected salmon. Id. at 1224. Citing Lujan, we determined that, because the plaintiffs had properly alleged a procedural harm, the standards for causation and redressability were relaxed. Id. at 1229 (citing Lujan, 504 U.S. at 572 n.7). We said that “uncer-tain[ty about] whether reinitiation will ultimately benefit the groups (for example, by resulting in a ‘jeopardy’ de-termination) does not undermine [the plaintiffs’] stand-ing.” Salmon Spawning, 545 F.3d at 1229. Thus, we concluded that the alleged injury—”scientific, education-al, aesthetic, recreational, spiritual, conservation, econo-mic, and business interests” in the ongoing survival of the salmon, id. at 1225 (internal quotation marks omitted)— was “not too tenuously connected to the agencies’ failure to reinitiate consultation,” id. at 1229. Further, we de-termined that “a court order requiring the agencies to re-initiate consultation would remedy the harm asserted.” Id.

As in Salmon Spawning, Cottonwood’s allegation of a procedural injury relaxes its burden of showing causation and redressability. See id. Cottonwood need not show that reinitiation of Section 7 consultation would lead to a different result at either the programmatic or project- specific level. See id. Cottonwood’s declarations alleg-ing aesthetic, recreational, scientific, and spiritual injury are “not too tenuously connected to [the Forest Service’s] failure to reinitiate consultation” to establish standing. See id. A court order reinitiating consultation on the

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Lynx Amendments would adequately redress the alleged harm. See id.

In sum, we hold that the district court properly de-termined that Cottonwood has standing to pursue its claim.

IV. Ripeness

Rehashing many of its standing arguments, the Forest Service argues that Cottonwood’s lawsuit is not ripe for review until, and unless, Cottonwood challenges a particular project that implements the Lynx Amend-ments. Further, the Forest Service suggests that adju-dication of Cottonwood’s programmatic challenge at this point is improper because future project-specific consul-tations might result in mitigation or elimination of any potential harm to Cottonwood’s members, thus rendering adjudication unnecessary. We conclude, however, that Cottonwood’s lawsuit is ripe for adjudication.

A.

“The doctrine of ripeness prevents courts from be-coming involved in abstract questions which have not af-fected the parties in a concrete way.” S. Cal. Edison Co. v. F.E.R.C., 770 F.2d 779, 785 (9th Cir. 1985). To deter-mine ripeness in an agency context, we must consider:

(1) whether delayed review would cause hardship to the plaintiffs; (2) whether judicial intervention would inappropriately interfere with further administrative action; and (3) whether the courts would benefit from further factual development of the issues presented.

Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 733 (1998); Ctr. for Biological Diversity v. U.S. Fish & Wild-life Serv., 450 F.3d 930, 940 (9th Cir. 2006) (applying this

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test to an ESA claim involving FWS). Judicial interven-tion does not interfere with further administrative action when an agency’s decision is “at an administrative resting place.” Citizens for Better Forestry v. U.S. Dep’t of Agric., 341 F.3d 961, 977 (9th Cir. 2003). Further, no ad-ditional factual development is necessary after a proce-dural injury has occurred. See Ohio Forestry Ass’n, 523 U.S. at 737 (holding that a procedural dispute is ripe “at the time the [procedural] failure takes place”).

B.

The Forest Service’s arguments rest on the false premise that Cottonwood is pursuing a substantive ESA claim. As explained above, Cottonwood does not argue for a particular substantive result, but rather alleges that the Forest Service failed to comply with the procedural requirements of the ESA when it declined to reinitiate consultation. When a party such as Cottonwood suffers a procedural injury, it “may complain of that failure at the time the failure takes place, for the claim can never get riper.” Id. at 737. The imminence of project-specific implementation “is irrelevant to the ripeness of an action raising a procedural injury.” Citizens for Better For-estry, 341 F.3d at 977; see also Seattle Audubon Soc’y v. Espy, 998 F.2d 699, 703 (9th Cir. 1993). Because the alleged procedural violation—failure to reinitiate consultation—is complete, so too is the factual develop-ment necessary to adjudicate the case. See Kraayen-brink, 632 F.3d at 486. Further, because the Forest Service is actively applying the Lynx Amendments at the project-specific level, delayed review would cause hard-ship to Cottonwood and its members.

The Forest Service’s argument that judicial interven-tion would preclude it from refining its policies and

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“adopting additional protective measures” after conduct-ing site-specific analysis misses the point. The Forest Service has completed the Lynx Amendments and re-fused to reinitiate Section 7 consultation after the 2009 revised critical habitat designation. That decision is ripe for review because it is “at an administrative resting place.” Citizens for Better Forestry, 341 F.3d at 977; see also Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 984 (9th Cir. 2006) (explaining that a claim is ripe for review when it is not “merely tentative or inter-locutory,” but rather the agency “has rendered its last word on the matter”) quoting Whitman v. Am. Trucking Ass’n, 531 U.S. 457, 478 (2001). Any “additional protec-tive measures” would apply only at the project-specific level, not the programmatic level in dispute. There is thus no improper interference with administrative action.

Delayed review would cause Cottonwood and its mem-bers further hardship. This dispute requires no addi-tional factual development because the procedural injury has already occurred. Further, judicial intervention will not interfere with further agency action because the agency’s decision is at an administrative resting place. We therefore hold that Cottonwood’s claim is ripe for re-view.

V. Reinitiation of Section 7 consultation

We turn to the merits of Cottonwood’s argument that the Forest Service violated Section 7 of the ESA by failing to reinitiate consultation on the Lynx Amendments when FWS designated critical habitat on National Forest land. The Forest Service asserts that it had no remain-ing Section 7 obligations related to the Lynx Amend-ments “because the Forest Service completed its action in 2007 when it made a final decision to amend the [Forest

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Plans].” We disagree and hold that the Forest Service must reinitiate consultation on the Lynx Amendments.

A.

Under Section 7(a)(2) of the ESA,

[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary [of Com-merce or the Interior] insure that any action au-thorized, funded, or carried out by such agency . . . is not likely to jeopardize the continued ex-istence of any endangered species or threatened species or result in the destruction or adverse mod-ification of [the critical] habitat of such species. . . .

16 U.S.C. § 1536(a)(2). If it appears that an action may affect an endangered or threatened species, the consulting agency must provide a biological opinion to the action agency explaining how the action “affects the species or its critical habitat.” Id. § 1536(b)(3)(A). When a biological opinion concludes that the action is likely to jeopardize an endangered or threatened spe-cies, or adversely modify its habitat, then the consult-ing agency must suggest “reasonable and prudent al-ternatives.” Id. If the biological opinion concludes otherwise, then the action is permitted to proceed.

The implementing regulations for the ESA define “action” as “all activities or programs of any kind author-ized, funded, or carried out . . . by Federal agencies.” 50 C.F.R. § 402.02. The regulation lists, as examples, “actions intended to conserve listed species or their hab-itat,” id. § 402.02(a), and “actions directly or indirectly causing modifications to the land, water, or air,” id. § 402.02(d). There is no dispute that the adoption of the

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Lynx Amendments was an action that required consulta-tion and that the 2007 BiOp satisfied the Forest Service’s initial Section 7 obligations. However, as noted above, because FWS had decided not to designate any National Forest land as critical habitat, the initial BiOp did not address, or respond to, the impact of the Lynx Amend-ments on designated critical habitat. The parties disa-gree about whether the 2009 revised critical habitat des-ignation required reinitiation of Section 7 consultation on the Lynx Amendments.

The Forest Service argues that reinitiation was not required because it had already promulgated the Lynx Amendments and incorporated them into the Forest Plans when the FWS released its revised critical habitat designation. For support, the Forest Service relies on Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55, 73 (2004) (“SUWA”). In SUWA, the Supreme Court considered whether the National Environmental Policy Act of 1969 (“NEPA”), 42 U.S.C. §§ 4321-4370, required the U.S. Bureau of Land Management (“BLM”) to sup-plement its environmental review of a land use plan if significant new information emerged after the plan was approved. Applying NEPA, the Court explained that “supplementation is necessary only if there remains ‘major Federal action’ to occur.” Id. at 73 (citing 42 U.S.C. § 4332 and 43 C.F.R. § 1601.0-6) (internal quota-tion marks and alterations omitted). The Court con-cluded that, because the land use plan was complete upon approval, the BLM had no obligation to supplement its environmental analysis.

In analogizing to SUWA, the Forest Service ignores a key difference between NEPA and the regulations gov-

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erning reinitiation of consultation under the ESA. The governing ESA regulation states, in relevant part,

[r]einitiation of formal consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and:

. . .

(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;

. . . , or

(d) If a new species is listed or critical habitat designated that may be affected by the identified ac-tion.

50 C.F.R. § 402.16. 11 Unlike the supplementation of environmental review at issue in SUWA, an agency’s re-sponsibility to reinitiate consultation does not terminate when the underlying action is complete. Stated another way, there is nothing in the ESA or its implementing reg-ulations that limits reinitiation to situations where there is “ongoing agency action.”12 The 2009 revised critical

11 The regulation governing reinitiation of consultation corre-

sponds with the regulation governing consultation, generally. 50 C.F.R. § 402.03 (“Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.”).

12 The parties vigorously debate whether our opinion in Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994) is still good law after SUWA. In Pacific Rivers, we held that the Forest Ser-vice was required to reinitiate consultation because Forest Plans

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habitat designation clearly meets the requirements of subsections (b) and (d) above. See id. The determina-tive question, therefore, is whether “discretionary Fed-eral involvement or control over the [Lynx Amendments] has been retained or is authorized by law.” See id.

B.

In National Association of Home Builders v. De-fenders of Wildlife, the Supreme Court clarified that the regulatory language limiting agencies’ Section 7 obliga-tions to actions over which they maintain “discretionary Federal involvement or control” is designed to avoid “im-pliedly repealing nondiscretionary statutory mandates.” 551 U.S. 644, 665 (2007). Section 7 does not “attach to actions . . . that an agency is required by statute to undertake,” because it could lead to an “override” of other statutory authority. Id. at 669. Similarly, “[i]n the case where a permit or license ha[s] been granted, reinitiation would not be appropriate unless the permitting or licen-sing agency retained jurisdiction over the matter under the terms of the permit or license or as otherwise author-ized by law.” Interagency Cooperation—Endangered Spe-cies Act of 1973, as Amended; Final Rule, 51 Fed. Reg. 19926-01, 19956 (June 3, 1986); see also Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir. 1995) (holding that

are “ongoing agency action.” Id. at 1053. We do not address the viability of Pacific Rivers’ reasoning after SUWA because it is not determinative of whether the Forest Service was required to re-initiate consultation. We certainly agree that where there is “on-going agency action,” an agency may be required to reinitiate con-sultation. However, even if the agency action is complete and not “ongoing,” the agency still may be required to reinitiate consulta-tion if there is “discretionary Federal involvement or control” over the completed action.

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there is not sufficient discretion to warrant Section 7 consultation where an agency lacks the ability to influence a private action). In other words, if an agency has no discretion to take any action that might benefit the threatened species, Section 7 consultation would be “a meaningless exercise.” Envtl. Prot. Info. Ctr. v. Simp-son Timber Co., 255 F.3d 1073, 1085 (9th Cir. 2001) (“EPIC”) (Nelson, J. dissenting) (citing Sierra Club, 65 F.3d at 1509); see also Jewell, 749 F.3d at 784 (“The agency lacks discretion only if another legal obligation makes it impossible for the agency to exercise discretion for the protected species’ benefit.”).

Here, there is no “nondiscretionary statutory man-date[],” see Home Builders, 551 U.S. at 665, nor “legal obligation,” see Jewell, 749 F.3d at 784, at issue that is beyond the Forest Service’s authority. Reinitiation of Section 7 consultation, therefore, could yield important actionable information. The Forest Service remains “in-volve[d]” in the Forest Plans, 50 C.F.R. § 402.16, because, as SUWA itself explained, agencies make additional decisions after approval that implement land use plans at the site-specific level, see 542 U.S. at 69-70. Further, the Forest Service retains exclusive “control,” 50 C.F.R. § 402.16, over its own Forest Plans throughout their im-plementation. Indeed, we have repeatedly explained that Forest Plans fall squarely within the “discretionary” parameters of 50 C.F.R. §§ 402.03 and 402.16 because, through the Forest Plans, the Forest Service retains a “continuing ability . . . to control forest management projects. . . . ” Sierra Club, 65 F.3d at 1509; see also W. Watersheds Project v. Matejko, 468 F.3d 1099, 1110 (9th Cir. 2006) (explaining our holding in Pacific Rivers Council, 30 F.3d at 1053-54, that Section 7 applies to For-

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est Plans, because the Forest Service “maintain[s] con-tinuing authority”); EPIC, 255 F.3d at 1080.

C.

This is not the first time since SUWA that we have decided that an agency has obligations under Section 7 even after the underlying action is complete. In Wash-ington Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024 (9th Cir. 2005), the Environmental Protection Agency (“EPA”) argued that, because it had completed registration of fifty-four pesticides pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 136 et seq., it was not required to comply with Section 7. 413 F.3d at 1030-33. Rejecting that argu-ment, we clarified that the appropriate test is not whether the agency has completed its action, but whether it re-tains regulatory authority over the action. Id. at 1033. We concluded that “[b]ecause EPA has continuing au-thority over pesticide regulation, it has a continuing obli-gation to follow the requirements of the ESA.” Id. We explained that it was EPA’s discretion to take actions that “inure to the benefit” of protected species that placed the registrations within the ambit of Section 7. Id.

As in Washington Toxics, it is irrelevant here whether the process of incorporating the Lynx Amendments into the Forest Plans was complete when FWS designated lynx critical habitat on National Forest land. “Because [the Forest Service] has continuing authority over [the Lynx Amendments to the Forest Plans], it has a contin-uing obligation to follow the requirements of the ESA.” See id. The Forest Service’s “ongoing regulatory au-thority” provides it “discretionary control to inure to the benefit of [the Canada lynx].” See id. (internal quota-tion marks omitted). Indeed, the Forest Service’s deci-

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sion to voluntarily reinitiate consultation in some forests, but not in others, demonstrates that it retains discretion and authority over the Lynx Amendments, and that it does not view reinitiation of consultation as a meaningless exercise.

Requiring reinitiation in these circumstances com-ports with the ESA’s statutory command that agencies consult to ensure the “continued existence” of listed spe-cies. 16 U.S.C. § 1536(a)(2), (4) (emphasis added). The Forest Service’s position in this case would relegate the ESA—”the most comprehensive legislation for the pres-ervation of endangered species ever enacted by any nation,” Tennessee Valley Authority v. Hill, 437 U.S. 153, 180 (1978)—to a static law that evaluates and responds to the impact of an action before that action takes place, but does not provide for any further evaluation or response when new information emerges that is critical to the evaluation. Here, FWS discovered that its decision on critical habitat had been tainted by an ethical lapse in its own administrative ranks. Re-evaluation of the data generated a drastically different result that justified vast designation of previously unprotected critical habitat. These new protections triggered new obligations. The Forest Service cannot evade its obligations by relying on an analysis it completed before the protections were put in place.

We hold that, pursuant to the ESA’s implementing regulations, the Forest Service was required to reinitiate consultation when the FWS designated critical habitat in National Forests. We therefore affirm the district court ruling on this issue.

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VI. Injunctive relief

In its cross-appeal, Cottonwood argues that the dis-trict court erred when it declined to enjoin “those pro-jects that ‘may affect’ critical habitat” until the agency has completed the required Section 7 consultation. Cotton-wood contends that the court improperly required that it present evidence showing a likelihood of irreparable in-jury. Cottonwood urges the court to follow our nearly thirty-year-old precedent that relieves plaintiffs of the traditional burden of establishing irreparable harm when seeking injunctive relief to remedy a procedural violation of the ESA. We affirm the district court’s denial of in-junctive relief but remand for further proceedings.

A.

Under “well-established principles of equity,” a plaintiff seeking permanent injunctive relief must satisfy a four-factor test by showing:

(1) that it has suffered an irreparable injury;

(2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hard-ships between the plaintiff and defendant, a rem-edy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

Starting with Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985), we have long recognized an exception to the traditional test for injunctive relief when addressing procedural violations under the ESA. See also Wash.

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Toxics, 413 F.3d at 1035; Sierra Club v. Marsh, 816 F.2d 1376, 1384 (9th Cir. 1987). In Thomas, after holding that plaintiffs established a procedural violation of the ESA, we addressed the appropriate remedy. We looked to our case law under NEPA, noting that “[t]he procedural requirements of the ESA are analogous to those of NEPA. . . . ” 753 F.2d at 764. We then acknowl-edged in the NEPA context, we had held that because “[i]rreparable damage is presumed to flow from a failure properly to evaluate” environmental impacts of an agency action, an injunction is typically the appropriate remedy for a Section 7 violation.13 Id. (citing Save Our Eco-systems v. Clark, 747 F.2d 1240, 1250 (9th Cir. 1984); Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 330 (9th Cir. 1975)). Critical to our discussion here was our holding that “[w]e see no reason that the same principle

13 In a subsequent case involving a Section 9 illegal take claim,

National Wildlife Federation v. Burlington Northern Railroad, we held that, although the traditional test for injunctive relief does not apply in ESA cases, “[t]he plaintiff must make a showing that a violation of the ESA is at least likely in the future.” 23 F.3d 1508, 1511 (9th Cir. 1994). In that case, it was undisputed that there had been a take of animals within an endangered species, grizzly bears, but we affirmed the denial of injunctive relief because there was insufficient evidence in the record that the defendant’s opera-tions would result in a future take of bears. On the surface, there is some tension between Burlington and Thomas, but there is a fundamental difference between the two cases. Burlington in-volved a discrete incident that resulted in a substantive violation of the ESA, whereas Thomas involved a procedural violation. Ad-dressing the procedural aspects of the ESA, we stressed in Thomas that there is a presumption of irreparable harm because “there can be no assurance that a violation of the ESA’s substantive provisions will not result” from a procedural failure under Section 7. 753 F.2d at 764. Notably, there was no procedural violation at issue in Burlington.

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should not apply to procedural violations of the ESA.” Id. In so holding, we explained that “[i]t is not the re-sponsibility of the plaintiffs to prove, nor the function of the courts to judge, the effect of a proposed action on an endangered species when proper procedures have not been followed.” Id. at 765.

In 2005, we reiterated that “the appropriate remedy for violations of the ESA consultation requirements is an injunction pending compliance with the ESA.” Wash. Toxics, 413 F.3d at 1035. We acknowledged that some “non-jeopardizing agency actions [may] continue during the consultation process,” but stated that “the burden should be on the agency [as] the entity that has violated its statutory duty” to establish that the agency action is non-jeopardizing. Id.

The Forest Service argues that the Thomas presump-tion of irreparable harm has been effectively overruled by two recent Supreme Court cases addressing injunctive relief in the context of NEPA: Winter v. Natural Re-sources Defense Council, Inc., 555 U.S. 7 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010). In Winter, the Court rejected our test for pre-liminary injunctive relief in NEPA cases as “too lenient.” 555 U.S. at 22. Our precedent had allowed for granting a preliminary injunction upon a showing that irreparable harm was a “possibility.” Id. The Winter Court held that, even in NEPA cases, “plaintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction.” Id. In Monsanto, this time addressing permanent injunctive relief in the context of NEPA, the Court disapproved of cases which do not apply the traditional four-factor test and instead “pre-sume that an injunction is the proper remedy for a NEPA

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violation except in unusual circumstances.” 561 U.S. at 157. The Court explained that there is nothing in NEPA that allows courts considering injunctive relief to put their “thumb on the scales.” Id.

B.

The central question here is whether Winter and Monsanto’s analysis of injunctive relief under NEPA ex-tends to the ESA, or whether the differences between the two statutes warrant a different test. The Supreme Court has explained that

Congress may intervene and guide or control the exercise of the courts’ discretion, but we do not lightly assume that Congress has intended to de-part from established principles. Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.

Amoco Prod. Co. v. Village of Gambell, AK, 480 U.S. 531, 542 (1987) (“Amoco”) (internal quotation marks and alterations omitted); see also eBay, 547 U.S. at 391-92 (rejecting a presumption in favor of injunctive relief because “[n]othing in the Patent Act indicates that Con-gress intended such a departure [from the traditional four-factor test]. To the contrary, the Patent Act ex-pressly provides that injunctions ‘may’ issue ‘in accord-ance with the principles of equity’ ” (citing 35 U.S.C. § 283)). Therefore, we must look to the underlying stat-ute to determine whether the traditional test for injunc-tive relief applies, or whether courts must apply a differ-ent test.

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There is no question, as firmly recognized by the Supreme Court, that the ESA strips courts of at least some of their equitable discretion in determining whether injunctive relief is warranted. Amoco, 480 U.S. at 543 n.9 (explaining that the ESA “foreclose[s] the traditional dis-cretion possessed by an equity court”). Hill held that courts do not have discretion to balance the parties’ com-peting interests in ESA cases because Congress “af-ford[ed] first priority to the declared national policy of saving endangered species.” 437 U.S. at 185. Hill also held that Congress established an unparalleled public interest in the “incalculable” value of preserving endan-gered species. Id. at 187-88. It is the incalculability of the injury that renders the “remedies available at law, such as monetary damages . . . inadequate.” See eBay, 547 U.S. at 391; see also Amoco, 480 U.S. at 545 (“Environmental injury, by its nature, can seldom be ade-quately remedied by money damages. . . . ”); Cal. ex rel. Lockyer v. U.S. Dep’t of Agric., 575 F.3d 999 (9th Cir. 2009) (same). But, although Hill clarified that the “lan-guage, history, and structure” of the ESA, 437 U.S. at 174, remove several factors in the four-factor test from a court’s equitable jurisdiction, Hill did not resolve whether plaintiffs must establish irreparable injury. That factor was not an issue in Hill because there was uncontroverted scientific evidence that completion and operation of the disputed project would “either eradicate the known pop-ulation of [the listed species] or destroy their critical habitat.” Id. at 171.

There is nothing in the ESA that explicitly, “or by a necessary and inescapable inference,” restricts a court’s discretion to decide whether a plaintiff has suffered ir-reparable injury. See Amoco, 480 U.S. at 542 (internal quotation marks omitted); 16 U.S.C. § 1540(g)(1)(A). Al-

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though Congress altered the third and fourth prongs of the traditional four-factor test for injunctive relief in ESA cases, Hill, 437 U.S. at 185, 187, and the second is gener-ally not at issue in environmental cases, Amoco, 480 U.S. at 545, the ESA does not allow courts to put their “thumb on the scales” in evaluating the first prong, Monsanto, 561 U.S. at 157. Thus, even though Winter and Mon-santo address NEPA, not the ESA, they nonetheless un-dermine the theoretical foundation for our prior rulings on injunctive relief in Thomas and its progeny. Indeed, Thomas’s reasoning explicitly relied on the presumption of irreparable injury that we had previously recognized in the NEPA context.14 Where Supreme Court precedent “undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable,” the prior circuit precedent is no longer binding. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). We must therefore conclude that there is no presumption of irreparable injury where there has been a procedural violation in ESA cases. A plaintiff must show irreparable injury to justify injunctive relief. In light of the stated purposes of the ESA in conserving endangered and threatened species and the ecosystems that support them, establishing irreparable injury should not be an onerous task for plaintiffs. 16 U.S.C. § 1531.

14 Cottonwood argues that since Winter and Monsanto we have continued to apply Thomas’s presumption of irreparable harm, cit-ing Kraayenbrink, 632 F.3d at 500, and Wild Fish Conservancy v. Salazar, 628 F.3d 513, 533 (9th Cir. 2010). Although we deter-mined in both cases that the ESA procedural violation warranted injunctive relief pending compliance with the ESA, we did so with-out discussing Winter and Monsanto’s impact on Thomas’s pre-sumption of irreparable harm.

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C.

The dissent worries that our opinion today will cause “uncertainty” “as a global storm of extinction rages.” Dissent at 40. The dissent overstates the sig-nificance of our holding. First, our opinion does nothing to disturb the Supreme Court’s holding in Hill that when evaluating a request for injunctive relief to remedy an ESA procedural violation, the equities and public interest factors always tip in favor of the protected species. As the Court made unmistakably clear: “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of afford-ing endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’ ” Hill, 437 U.S. at 194. That fundamental principle remains intact and will continue to guide district courts when confronted with requests for injunctive relief in ESA cases.

Second, we do not dispute that the Thomas presump-tion of irreparable harm virtually assures the grant of in-junctive relief to remedy an ESA procedural violation. But that does not mean that without the aid of such a pre-sumption the district courts will be at a disadvantage in remedying procedural violations pending compliance with the ESA. Indeed, as exemplified by several of the cases the dissent cites, district courts are quite capable of iden-tifying harm to protected species, and in crafting an in-junction to remedy the precise harm. For instance, in South Yuba River Citizens League v. National Marine Fisheries Service, the district court, although acknow-ledging Thomas’s holding, nonetheless held that the plaintiff “must show that irreparable harm to the listed species will result from defendants’ violation of the ESA

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in the absence of each [protective] measure plaintiffs re-quest.” 804 F. Supp. 2d 1045, 1054 (E.D. Cal. 2011). The court proceeded to address the evidence of harm and the relief requested, and granted an injunction to address the harm established by the evidence.

Similarly, in National Wildlife Federation v. National Marine Fisheries Service, 839 F. Supp. 2d 1117, 1131 (D. Or. 2011), the plaintiffs moved the district court to order the operators of the Federal Columbia River Power Sys-tem to maintain previously established spring and sum-mer dam spills along the Columbia River for the protec-tion of endangered salmon species. In ruling on the mo-tion, the court recognized our holding in Thomas, but did not stop there. Instead, it proceeded to review the rec-ord and found that without certain protective measures sought by the plaintiffs, including the spills, the protected fish would suffer irreparable harm. The court then granted injunctive relief to address the specific harm.

As these cases demonstrate, district courts will not be left adrift without the benefit of Thomas’s presumption of irreparable harm. The purposes and objectives of the ESA, as recognized in Hill, will continue to provide fun-damental direction to the district courts when confronted with a request for injunctive relief to remedy a procedural violation of the ESA. The presumption of irreparable harm, however, as explained above, cannot survive the Court’s recent opinions in Winter and Monsanto.

D.

Although we acknowledge today that Thomas’s rul-ing on injunctive relief is no longer good law, we recog-nize that it has been the law of the circuit since 1985. Cottonwood should not be faulted for relying on Thomas

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and its progeny as a basis for injunctive relief. We therefore vacate the district court’s denial of injunctive relief and remand on an open record to allow Cottonwood an opportunity to make a showing of irreparable injury.

VII. Conclusion

We affirm the district court’s ruling that the Forest Service violated Section 7 of the ESA when it failed to reinitiate consultation after FWS designated critical habitat on National Forest land. We also affirm the district court’s denial of injunctive relief to Cottonwood. We remand, however, to provide Cottonwood an oppor-tunity to make an evidentiary showing that specific pro-jects will likely cause irreparable damage to its members’ interests.

AFFIRMED AND REMANDED.

The parties shall bear their own costs on appeal.

PREGERSON, Circuit Judge, concurring in part and dis-senting in part:

Respectfully, I dissent from Section VI of the ma-jority opinion which makes it harder to protect the threatened Canada Lynx and its critical habitat, and puts the species at increased risk. I do not agree with the majority that Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985) (“Thomas”), should be put into the shredder by inferring that Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010), implicitly “un-dermine the theoretical foundation for our prior rulings on injunctive relief in Thomas and its progeny.” Maj. op. at 33. I do not read Winter and Monsanto as casting a dark shadow on the ESA’s legislative purpose and our Ninth Circuit precedent. Winter and Monsanto are not

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“clearly irreconcilable” with Thomas as required for a three-judge panel to overturn settled Ninth Circuit case law. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003).

Winter and Monsanto focus on NEPA’s—not the ESA’s—standard for injunctive relief. Winter and Monsanto do not address the ESA, which has a unique purpose and history, and still shines as the “most com-prehensive legislation for the preservation of endangered species ever enacted by any nation.” Babbitt v. Sweet Home Chapter of Cmtys for a Great Oregon, 515 U.S. 687, 698 (1995).

The Supreme Court has carefully considered the ESA’s purpose and text in terms of a court’s equitable powers when faced with an ESA violation. See TVA v. Hill, 437 U.S. 153, 173, 193-95 (1978) (finding that it was the plain intent of Congress in enacting the ESA to halt and reverse the trend towards species extinction, what-ever the cost, and that an injunction was the appropriate remedy when a nearly-completed, multimillion-dollar dam threatened an endangered snail darter and its critical habitat).

The Supreme Court examined congressional intent to understand how Section 7 of the ESA affected the courts’ equitable powers. Id. at 183-84. Although the courts ensure compliance with the ESA, as the Supreme Court noted, “Congress had foreclosed the exercise of the usual discretion possessed by a court of equity.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982). Discussing Hill, the Ninth Circuit has observed that “[courts] have no expert knowledge on the subject of endangered spe-cies, much less do [they] have a mandate from the people to strike a balance of equities [against the interests of an

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endangered species].” Sierra Club v. Marsh, 816 F.2d 1376, 1383 (9th Cir. 1987) (internal citations omitted).

The majority asserts that “the ESA does not allow courts to put their thumb on the scales,” Maj. op. at 33. But, I remain firmly convinced that “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endan-gered species the highest of priorities. . . . ” Sierra Club, 816 F.2d at 1383. I agree with the Supreme Court that “[o]ne would be hard pressed to find a statutory provision whose terms were any plainer than [those of the ESA].” Romero-Barcelo, 456 U.S at 313 (citing Hill, U.S. 437 at 173).

The ESA commands federal agencies to “insure that any action authorized, funded, or carried out by [them] is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species. . . . ” 16 U.S.C.A. § 1536. “The purpose and language of the statute under consideration in Hill, not the bare fact of a statutory violation, compel[ an injunc-tion in the face of an ESA violation that threatens critical habitat].” Romero-Barcelo, 456 U.S. at 314. “In Con-gress’s view, projects that jeopardized the continued ex-istence of endangered species threatened incalculable harm: accordingly, it decided that the balance of hard-ships and the public interest tip heavily in favor of en-dangered species.” Sierra Club, 816 F.2d at 1383. Contrary to the majority, I agree with Ninth Circuit precedent holding that “[w]e may not use equity’s scales to strike a different balance.” Id.

The majority’s analogy between NEPA and the ESA fails to appreciate the critical difference between these

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statutes. The ESA’s statutory goal is to substantively provide for the conservation of endangered and threat-ened species and their ecosystems, 16 U.S.C.A. § 1531(b); whereas NEPA’s statutory goals are fundamentally pro-cedural, and designed to create an environmental policy process that promotes the nation’s general welfare. 42 U.S.C. § 4331; see Winter, 555 U.S. at 23 (remarking that “NEPA itself does not mandate particular results. In-stead, NEPA imposes only procedural requirements to ensure that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” (internal citation and quotation marks omitted)).

The substantive purpose of the ESA, conserving en-dangered and threatened species and their ecosystems, justifies more protective processes than NEPA’s purpose, ensuring decision-makers have and consider all important information on environmental impacts. See Thomas, 753 F.2d at 764 (“If anything, the strict substantive provisions of the ESA justify more stringent enforcement of its pro-cedural requirements, because the procedural require-ments are designed to ensure compliance with the sub-stantive provisions.”).

It is important to note that the majority opinion elim-inates Thomas’s procedural protections as a global storm of extinction rages. See S.L Pimms et al., The Biodiver-sity of Species and Their Rates of Extinction, Distribu-tion, and Protection, 344 Science 1246752 (2014) (con-cluding that rates of extinction today are approximately 1,000 times the rate of extinction absent human action); Elizabeth Kolbert, The Sixth Extinction: An Unnatural History (2014). The uncertainty resulting from the ma-

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jority opinion bodes ill for endangered species and the public.

A number of species at risk of extinction have been protected by Thomas’s holding, both in the Ninth Circuit and elsewhere. See, e.g., S. Yuba River Citizens League v. Nat’l Marine Fisheries Serv., 804 F. Supp. 2d 1045, 1055 (E.D. Cal. 2011) (protecting Chinook salmon, Cen-tral Valley Steelhead, and green sturgeon); Ctr. for Bio-logical Diversity v. U.S. Forest Serv., 820 F. Supp. 2d 1029, 1038 (D. Ariz. 2011) (protecting the Mexican spotted owl and New Mexico ridge-nosed rattlesnake); Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 839 F. Supp. 2d 1117, 1131 (D. Or. 2011) (protecting several en-dangered species of salmon, including Chum, Chinook, Sockeye, and Coho salmon); Ctr. for Biological Diversity v. Bureau of Land Mgmt., No. C 03-05509 SI, 2004 WL 3030209, at *6 (N.D. Cal. Dec. 30, 2004) (protecting the Mojave desert tortoise); Pac. Coast Fed’n of Fishermen’s Ass’ns v. U.S. Bureau of Reclamation, 138 F. Supp. 2d 1228, 1248 (N.D. Cal. 2001) (protecting the shortnose sucker and the Lost River sucker); Greenpeace v. Nat’l Marine Fisheries Serv., 106 F. Supp. 2d 1066, 1073 (W.D. Wash. 2000) (protecting the Stellar sea lion); Greenpeace Found. v. Mineta, 122 F. Supp. 2d 1123, 1137 (D. Haw. 2000) (protecting the Hawaiian monk seal); Florida Key Deer v. Brown, 386 F. Supp. 2d 1281, 1291 (S.D. Fla. 2005), aff’d sub nom. Florida Key Deer v. Paulison, 522 F.3d 1133 (11th Cir. 2008) (protecting the Key Largo cot-ton mouse, Key Deer, Key Largo woodrat, Lower Keys marsh rabbit, Schaus’ swallowtail butterfly, silver rice rat, Stock Island tree snail, and Key tree-cactus).

Section VI of the majority opinion states that “[i]n light of the stated purposes of the ESA . . . [,] estab-

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lishing irreparable injury should not be an onerous task for plaintiffs.” Maj. op. at 34. This may prove more dif-ficult in practice than the majority assumes.

The majority opinion points to Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 839 F. Supp. 2d 1117 (D. Or. 2011), where a district court seemingly easily identi-fied irreparable harm to endangered salmon species, to demonstrate that district courts will have no difficulty determining the existence of irreparable harm to a spe-cies and tailoring injunctions accordingly. Maj. op. at 35-36. Notably, the majority opinion fails to discuss the decades of scientific analysis needed for the district court to identify that harm, beginning with the 1991 listing of the Snake River sockeye salmon as an endangered spe-cies under the ESA. See, e.g., Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 2005 WL 1278878, at *22-32 (D. Or. May 26, 2005) (listing some of the scientific sourc-es considered by the District Court of Oregon during National Wildlife Federation’s years of protracted liti-gation)). A full review of the “Columbia basin salmon saga” demonstrates that the district court’s decades-long efforts to analyze the evidence of irreparable harm has resulted in judicial frustration and “status quo dam oper-ations [that] largely continue to inflict high salmon mor-talities” even “over two decades after a determination that more than a dozen species of Pacific salmonids re-quire ESA protection.” Michael C. Blumm & Aurora Paulsen, The Role of the Judge in ESA Implementation: District Judge James Redden and the Columbia Basin Salmon Saga, 32 Stan. Envtl. L.J. 87, 148 (2013) (exam-ining a “paradigmatic example of the limits of judicial review to effectuate real improvements in complex natu-ral resources cases” despite active managerial efforts by the district court).

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The outcome of National Wildlife Federation is a good example justifying Thomas’s holding that an injunction to protect endangered species and their critical habitat must come first.1 Thomas’s holding remains one of the best guarantors of positive outcomes for threatened and en-dangered species.

Because I would follow settled precedent and protect the Canada Lynx and its critical habitat first, I would apply Thomas v. Peterson rather than finding it to be im-plicitly overturned as the majority does. Thus, I would grant Appellant’s request for an injunction pending com-pliance with the ESA’s Section 7 consultation require-ments.

1 The majority opinion also discusses South Yuba River Citizens

League, 804 F. Supp. 2d 1045, another ESA case involving the ef-fect of dams on endangered salmon and other fish species, to dem-onstrate the ability of a district court to “address the evidence of harm and the relief requested, and grant[] an injunction to address the harm established by the evidence.” Maj. op. at 35.

But a careful reading of South Yuba River finds that Thomas provided a critical function in that case, offering the district court a solid foundation for an injunction even when the “data and analysis necessary to determine what measures, precisely, are needed in order to avoid jeopardizing the listed species [were not provided by the government.]” 804 F. Supp. 2d at 1055. Lacking this neces-sary information, the district court was able to “err on the side of a more protective injunction,” relying, in part, on Thomas’s holding that, had plaintiffs sought such a remedy, the court could “enjoin the new project entirely.” Id.

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APPENDIX C

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

No. CV-12-45-M-DLC

NOLAN SALIX; COTTONWOOD ENVIRONMENTAL LAW

CENTER, PLAINTIFFS v.

UNITED STATES FOREST SERVICE; FAYE KRUEGER, IN HER OFFICIAL CAPACITY AS REGIONAL FORESTER FOR

THE U.S. FOREST SERVICE, REGION ONE, DEFENDANTS

[Filed: May 16, 2013]

ORDER

Before the Court are the parties’ cross-motions for summary judgment. For the reasons discussed below, Plaintiffs’ motion is granted and Defendants’ motion is denied. As threshold matters, Plaintiffs have standing to challenge the Forest Service’s failure to reinitiate sec-tion 7 consultation on the programmatic plan amendment at issue here, and the Court has jurisdiction to consider the case because Plaintiffs’ notice of intent to sue was adequate. The Court also finds that the Ninth Circuit’s decision in Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied 514 U.S. 1082 (1995)

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(“Pacific Rivers (1994)”), remains good law in this Cir-cuit and that the programmatic plan amendment is thus subject to the Endangered Species Act’s requirements that section 7 consultation be reinitiated in certain cir-cumstances. The designation of critical habitat on forest service lands subject to the plan amendment constituted such a triggering event, and the Forest Service violated the Endangered Species Act by failing to reinitiate con-sultation. While the Forest Service must now reinitiate consultation, the Court will not enjoin any specific pro-jects or grant the broad injunctive relief requested by Plaintiffs because Plaintiffs have not made an adequate showing of irreparable harm to support the scope of the injunctive relief requested.

FACTS

In 2000, the Distinct Population Segment of Canada lynx in the contiguous United States was added to the list of threatened species under the Endangered Species Act (“ESA”). In response, the United States Forest Service (“Forest Service”) developed the Northern Rockies Lynx Amendment (the “Lynx Amendment” or “Amendment”), a “programmatic plan amendment[]” to the land and resource management plans (“forest plans”) of 18 National Forests in the Northern Rocky Mountains analysis area. The Lynx Amendment is “programmatic in nature, consisting of direction that would be applied to future management activities.” AR 2372 at 4; AR 0101(a) at 4; AR 2535 at 8639.

In 2005, the Forest Service initiated formal consulta-tion with the Fish and Wildlife Service (“Wildlife Ser-vice”) on the Amendment, pursuant to Section 7 of the ESA. At that time, the Wildlife Service had not yet designated any critical habitat for lynx on Forest Service

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lands.1 Thus, the consultation did not include any con-sideration of whether the Lynx Amendment would affect lynx critical habitat.

Section 7 consultation was completed in 2007 when the Wildlife Service issued a Biological Opinion concluding that the Lynx Amendment would not jeopardize the con-tinued existence of the Canada lynx. In a single Record of Decision, the Forest Service then incorporated the Lynx Amendment into the land and resource manage-ment plans for 18 national forests.

On February 25, 2009, the Wildlife Service extended critical habitat protections to additional lands in Idaho, Montana, and Wyoming that were already occupied by lynx, including areas within 11 national forests that were impacted by the Lynx Amendment.

Plaintiffs allege that the Forest Service should have reinitiated Section 7 consultation on the Lynx Amend-ment when lynx critical habitat was designated on Forest Service land. The claim arises under the citizen suit pro-vision of the ESA, 16 U.S.C. § 1540(g)(1)(A).

ANALYSIS

I. Standing

In order to satisfy the case or controversy require-ment of Article III, a plaintiff must establish standing to bring a claim. Summers v. Earth Island Inst., 555 U.S. 488, 491 (2009). An organizational plaintiff has standing

1 In 2006, the Wildlife Service designated some critical habitat for

lynx, but none of the designated areas were located on Forest Ser-vice lands. Ultimately, the Wildlife Service voluntarily revisited this designation, citing the “improper administrative influence” of Julie MacDonald, former Deputy Assistant Secretary of the Interior.

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to sue if its members would have standing to sue in their own right, the “interests at stake are germane to the organization’s purposes,” and the members’ participation is not necessary to the claim or the relief requested. Friends of the Earth, Inc. v. Laidlaw Envtl. Srvcs. (TOC), Inc., 528 U.S. 167, 181 (2000).

Three elements are essential to member standing: injury in fact, causation, and redressability. An “injury in fact” must be (a) “concrete and particularized” and (b) “actual or imminent, not conjectural or hypothetical.” Summers, 555 U.S. at 493 (citation omitted). An organ-ization must show, through specific facts, Fed. R. Civ. P. 56(e), that at least one member has concrete and personal interests in a specific area of the environment that is affected by the challenged government action and that the member’s interests have been and will be directly harmed by the government action. Summers, 555 U.S. at 494-98. Additionally, the injury must be “fairly traceable to the challenged action” and likely to be redressed by a favor-able decision. Id. “A showing of procedural injury lessens a plaintiff ’s burden on the last two prongs of the Article III standing inquiry, causation and redressabil-ity.” Salmon Spawning & Recovery Alliance v. Guti-errez, 545 F.3d 1220, 1226 (9th Cir. 2008) (citation omit-ted). “Plaintiffs alleging procedural injury must show only that they have a procedural right that, if exercised, could protect their concrete interests.” Id. (citation omitted) (emphasis in original).

In the case at hand, Plaintiffs challenge the Forest Services failure to reinitiate consultation on the Lynx Amendment, which was accomplished through one Rec-ord of Decision, but amended 20 separate plans covering 18 national forest units. Plaintiffs have named several

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specific, affected subareas of the national forests affected by the Lynx Amendment that they use and enjoy. See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472, 484 (9th Cir. 2010) (citing Idaho Conserv. League v. Mumma, 956 F.2d 1508, 1517 (9th Cir. 1992)). In sever-al of these areas, the Forest Service has designated crit-ical habitat for lynx. In a few of these areas, Plaintiffs have alleged that their interests face imminent threat because the Forest Service has approved projects with-out conducting the landscape-level analysis that would take place if the Forest Service reinitiated consultation on the Lynx Amendment. They allege the failure to reinitiate consultation on the Lynx Amendment threat-ens lynx habitat in these areas and will impair their op-portunity to see lynx in the wild.

Defendants claim that Plaintiffs must establish stand-ing to challenge each individual forest plan, that they must also challenge specific projects that rely on the plan, and that they must show that the site-specific anal-ysis for particular projects did not compensate for any injury that might have been caused by the failure to re-initiate consultation on the Lynx Amendment. Defen-dants argue that Plaintiffs have failed to allege an injury in fact that is traceable to the amendment of the plans for 17 of the 18 forests and that Plaintiffs’ allegations of injury in the Gallatin National Forest are negated by the Wildlife Service’s determination in site-specific biological opinions that the projects in question would not adverse-ly modify lynx critical habitat. Plaintiffs counter that they have established standing to challenge the single, programmatic Lynx Amendment. It is sufficient, they insist, that they show a single imminent injury to their interests in one specific area in one national forest that is affected by the Amendment.

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For the reasons discussed below, Plaintiffs’ argu-ments are more compelling.

A.

Defendants suggest that Summers requires plaintiffs who are challenging a programmatic regulation to also assert (and succeed on) a site-specific, “as-applied” claim challenging a specific project. (See doc. 32 at 9-12). However, for the purpose of establishing standing to challenge a programmatic regulation, plaintiffs can allege injury from a project that relies on that regulation with-out asserting a separate claim against the project.

In Summers, the plaintiffs challenged various timber regulations and also challenged the failure of the Forest Service to apply one of the regulations to a particular project, the Burnt Ridge Project. 555 U.S. at 494. They settled the dispute over the Burnt Ridge project before the challenge to the regulations was decided. Id. The Supreme Court held that the plaintiffs lacked stand-ing to challenge the regulations since their dispute over the Burnt Ridge project had been resolved. Id. But this was not because the separate claim was no longer part of the action. Rather, the only injury the plaintiffs had alleged in their standing affidavits was associated with the Burnt Ridge project. Id. at 495. They had not alleged a particularized injury in any other area. The Court held: “We know of no precedent for the proposi-tion that when a plaintiff has sued to challenge the law-fulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens im-minent harm to his interests.” Id. at 494 (emphasis added). It was the lack of a concrete application that

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threatened imminent harm to the plaintiffs’ interests, not the lack of an independent, project-specific claim, that ultimately impaired the plaintiffs’ standing to challenge the regulations.

The Ninth Circuit’s decisions in Sierra Forest Legacy v. Sherman, 646 F.3d 1161 (9th Cir. 2011), and Pacific Rivers Council v. United States Forest Service, 689 F.3d 1012 (9th Cir. 2012) (“Pacific Rivers (2012)”), support this reading of Summers. At issue in Sierra Forest Leg-acy was whether the State of California and a nonprofit member organization called Sierra Forest Legacy had standing to challenge a 2004 Framework that established direction for timber projects in 10 national forests and one management unit encompassing some 11.5 million acres. Id. at 1170, 1178-80. The Circuit held that both plaintiffs had standing. California had standing because of its “unique proprietary interests” as a state. Id. at 1178-79. But Sierra Forest Legacy also “ha[d] standing to bring a facial challenge to the 2004 Framework, inde-pendent from specific implementing projects.” Id. at 1179 (emphasis added). Sierra Forest Legacy’s mem-bers had asserted interests in areas encompassed by three timber projects within just one of the affected forests. Id. at 1179-80. Sierra Forest had standing not based on whether it challenged any of the projects, but because its members asserted interests in areas that would be affected by specific projects in a forest that was subject to the 2004 Framework.

The Ninth Circuit reached the same conclusion in Pacific Rivers (2012), a case in which the plaintiffs chal-lenged the same 2004 Framework that was at issue in Sierra Forest Legacy. The court held that where “there is little doubt that [the plaintiff ’s members] will come into

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contact with affected areas, and the implementation of the [programmatic plan] will affect their continued use and enjoyment of the forests,” NEPA plaintiffs do not have to “wait to challenge a specific project when their grievance is with an overall plan.” 689 F.3d at 1023 (in-ternal quotation marks and citation omitted). The court explained:

[I]f the agency action only could be challenged at the site-specific development stage, the underlying pro-grammatic authorization would forever escape review. To the extent that the plan pre-determined the future, it represents a concrete injury that plaintiffs must, at some point, have standing to challenge. That point is now, or it is never.

Id. (quoting Salmon River Concerned Citizens v. Rob-ertson, 32 F.3d 1346, 1355 (9th Cir. 1994)). See also Wil-derness Society, Inc. v. Rey, 622 F.3d 1251, 1256-57 (9th Cir. 2010).

Under Sierra Forest Legacy and Pacific Rivers (2012), plaintiffs may challenge a programmatic regula-tion that affects multiple forests so long as they allege a particularized injury in a specific area that is affected by the regulation and that will be subject to an agency ac-tion that relies on the regulation. It is not necessary for plaintiffs to assert a separate claim challenging the pro-ject or for plaintiffs to assert a particularized injury for every forest subject to the regulation. Plaintiffs’ deci-sion not to challenge a specific project in this action does not undermine their standing to challenge the program-matic Lynx Amendment, and they are not required to show a particularized injury in every forest affected by the Lynx Amendment.

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B.

Defendants also suggest that plaintiffs alleging injury from a specific project that relies on a programmatic plan must prove that the project analysis for that specific site failed to compensate for any injury the programmatic plan might have caused. In the case at hand, Defen-dants insist that the site-specific biological opinions for the Bozeman Municipal Watershed Project and the East Boulder Project considered the effects of the projects on lynx critical habitat and thereby eliminated any risk that the failure to address critical habitat when consulting on the Lynx Amendment would cause Plaintiffs injury.

Defendants rely on Ohio Forestry Association, Inc. v. Sierra Club, 523 U.S. 726 (1998),2 in support of their ar-gument that Plaintiffs must prove that site-specific bio-logical opinions relied upon the programmatic document “in any unlawful fashion.” (Doc. 32 at 11.) In the NFMA context, the Supreme Court held in Ohio Forest-ry that forest plans do “not create adverse effects . . . of a sort that traditionally would have qualified as harm” because “they do not command anyone to do anything or to refrain from doing anything; they do not grant, with-hold, or modify any formal legal license, power, or au-thority; they do not subject anyone to any civil or crimi-nal liability; they create no legal rights or obligations.”

2 The other cases cited by Defendants, Wild Fish Conservancy v.

Salazar, 628 F.3d 513, 532 (9th Cir. 2010), and Natural Resources Defense Council v. Salazar, 686 F.3d 1092, 1098 (9th Cir. 2012), are inapposite. Wild Fish Conservancy did not address standing or traceability and Natural Resources Defense Council did not address whether a plaintiff has standing to challenge a programmatic docu-ment when the plaintiff has not challenged site-specific projects or biological opinions implementing the document.

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523 U.S. at 733. Thus, the potential harm posed by a forest plan is neither imminent nor certain when the for-est plan is considered in a vacuum. Id. at 734. A spe-cific project relying on the plan, however, raises the pos-sibility the plan will cause an injury in fact. Id. The Court stated:

Any such later challenge [to a project] might also in-clude a challenge to the lawfulness of the present Plan if (but only if) the present Plan then matters, i.e., if the Plan plays a causal role with respect to the future, then-imminent, harm from logging.

Id. Twinning a project challenge with a plan challenge allows the “benefit of the focus that a particular logging proposal could provide” and avoids “the kind of abstract disagreements over administrative policies . . . that the ripeness doctrine seeks to avoid.” Id. at 736 (inter-nal quotation marks and citation omitted).

Unlike the case at hand, however, Ohio Forestry involved a challenge under the National Forest Man-agement Act (“NFMA”). The Supreme Court explic-itly distinguished a NFMA challenge from a challenge brought pursuant to the National Environmental Pol-icy Act (“NEPA”):

NEPA, unlike NFMA, simply guarantees a partic-ular procedure, not a particular result. . . . Hence a person with standing who is injured by a failure to comply with the NEPA procedure may complain of that failure at the time the failure takes place, for the claim can never get riper.

Id. at 737.

Like NEPA, section 7 of the ESA guarantees a par-ticular procedure, not a particular result. Thus Ohio

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Forest’s requirements that a NFMA challenge to a For-est Plan be combined with a challenge to a project and that Plaintiffs prove the Project improperly relied on the challenged plan do not apply here.

The Ninth Circuit has explicitly rejected the notion that site-specific environmental analyses can cure an as-serted procedural injury related to a programmatic reg-ulation:

Nor could the Forest Service cure flaws in [a land management resource plan] in the [environmental impact statement (“EIS”)] for a site-specific pro-ject. See Pit River [Tribe v. U.S. Forest Serv., 469 F.3d 768, 785 (9th Cir. 2006)] (“[D]ilatory or ex post facto environmental review cannot cure an initial failure to undertake environmental review.”). We have never held that an LRMP is not subject to fa-cial attack based on an alleged NEPA violation.

Sierra Forest Legacy, 646 F.3d at 1180. It is thus irrel-evant that the biological opinions for the Bozeman Mu-nicipal Watershed Project and the East Boulder Project found that neither project will adversely modify lynx critical habitat. The possibility of harm is imminent and concrete despite the project-specific decisions because the Lynx Amendment provides the “big picture approach to lynx management” and “contributes to the landscape level direction.” AR 0101(a) at 70. Even if site-specific environmental analyses are completed, “[e]ffects may oc-cur and/or continue without appropriate management direction at broad scales.” AR 2375 at 31. See Idaho Conserv. League, 956 F.3d at 1516 (“[S]hort of assuming that Congress imposed useless procedural safeguards . . . we must conclude that the management plan plays some, if not a critical, part in subsequent decisions.”).

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Thus Plaintiffs were not required to prove that the site- specific analyses for the Bozeman Municipal Watershed Project and East Boulder Project failed to compensate for their alleged injury.

C.

As in Pacific Rivers Council (2012) and Sierra Forest Legacy, Plaintiffs here allege a procedural violation re-lated to a programmatic plan affecting multiple forests. Six members have submitted affidavits alleging interests in areas of the Gallatin, Custer, Lolo, Flathead, Helena, Custer, Shoshone, and Bridger-Teton National Forests. (Docs. 1-2, 12, 16, 25, 26, 27, 28.) They name specific subareas of these forests in which they recreate, includ-ing areas in which lynx critical habitat has been desig-nated. Some of these areas with lynx critical habitat have been and will be affected by specific projects the Forest Service is implementing—including the Bozeman Municipal Watershed Project and the East Boulder Pro-ject in the Gallatin National Forest—and several mem-bers indicate they have used these areas in the past and have concrete plans to return in the future.3 (Docs. 1-2 at 2-3; 12 at 2-3; 16 at 2-3; 25 at 2; 28 at 4.) The affiants hunt, hike, ride horses, recreate, and look for wildlife, including lynx, in these areas. They specifically like to visit lynx critical habitat because it offers a better op-portunity to see Canada lynx. They are concerned that the lack of consultation on the Lynx Amendment since critical habitat was designated will result in adverse mod-ification to critical habitat in the Forests generally and in

3 One affiant is also connected to the Colt Summit Project area in

the Lolo National Forest, but it is not clear whether this project area contains lynx critical habitat.

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the Project areas specifically because of the lack of anal-ysis at the landscape, rather than the site-specific, level. (Docs. 25-28.)

Plaintiffs have demonstrated that the affiants have a connection to several areas that contain lynx critical hab-itat and are affected by the Lynx Amendment and that they have “specific and concrete” plans to return to and use these areas. Summers, 555 U.S. at 494-95. They have shown that their risk of harm is actual and immi-nent because specific projects guided in part by the Lynx Amendment are being implemented in areas they use and plan to return to. They have shown the alleged pro-cedural injury “affects the recreational or even the mere esthetic interest[s]” of Cottonwood Environmental Law Center members and that it is possible that a favorable decision in this case could redress their alleged injuries. Summers, 555 U.S. at 494-95. “Plaintiffs alleging pro-cedural injury must show only that they have a proce-dural right that, if exercised, could protect their concrete interests.” Salmon Spawning & Recovery Alliance, 545 F.3d at 1226 (internal quotation marks and citation omit-ted).

[T]he fact that . . . [re-initiating consultation] might not in any way change the [management direc-tion for the projects] is irrelevant. The asserted in-jury is that environmental consequences might be overlooked and reasonable alternatives ignored as a result of deficiencies. . . . The ultimate outcome following proper procedures is not in question.

Idaho Conservation League, 956 F.2d at 1518 (citation omitted). In summary, Plaintiffs have established standing to challenge the Lynx Amendment to the 20 forest plans at issue based on the subsequent designation

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of lynx critical habitat and the Forest Service’s decision not to reinitiate consultation with the Wildlife Service.

II. Notice of Intent to Sue

Defendants insist that the Court lacks jurisdiction to consider this case because Plaintiff ’s letter of intent to sue under the ESA did not provide adequate notice of the lawsuit it has filed. A citizen suit under the ESA may not be commenced “prior to sixty days after written notice of the violation has been given to the Secretary, and to any alleged violator.” 16 U.S.C. § 1540(g)(2)(A)(i). “The purpose of the 60-day notice provision is to put the agencies on notice of a perceived violation of the statute and an intent to sue.” S.W. Ctr. for Biological Diversity v. US. Bureau of Reclamation, 143 F.3d 515, 520 (9th Cir. 1998). The notice must provide sufficient detail “so that the Secretary or [alleged violator can] identify and at-tempt to abate the violation.” Id. at 522. Otherwise, courts lack jurisdiction to consider the case. Id. at 520; 16 U.S.C. § 1540(g)(3)(A).

Plaintiffs’ Notice to the government states: “The Government’s reliance on the Northern Rockies Lynx Management Direction without re-initiating formal con-sultation violates the Endangered Species Act.” (Doc. 23-2 at 3.) It states that reinitiation of consultation was required under section 7 of the ESA after critical habitat was designated on national forest land (id. at 2), and it identifies the specific regulatory provisions alleged to have been violated, 50 C.F.R. § 402.16(b) and (d):

(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;

. . . . or

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(d) If a new species is listed or critical habitat is des-ignated that may be affected by the identified action.

(Id. at 2-3.) The Notice demands reinitiation of formal consultation on the Lynx Amendment and a “new biolog-ical opinion” analyzing “the designation of new critical habitat on National Forests” and it informs Defendants of Plaintiffs’ intent to seek declaratory and injunctive re-lief if corrective action was not taken. (Id.) The Notice does not identify any specific project or national forest that is subject to the Lynx Amendment.

Plaintiffs provided sufficient notice under 16 U.S.C. § 1540(g)(3)(A). The single cause of action in the Com-plaint was described in the Notice. The Notice identi-fied the statute and regulations allegedly violated and identified the specific violation complained of, the Forest Service’s failure to reinitiate consultation on the Lynx Amendment once lynx critical habitat was designated on affected lands. The Complaint alleged the same viola-tion and relied on the same statutes and regulations.

Plaintiffs were not required to provide Defendants no-tice of a specific project that relied on the Lynx Amend-ment because they have not challenged a specific project. In contrast, in Southwest Center for Biological Diversity, the plaintiffs’ complaint and amended complaint specifi-cally alleged that the defendant was jeopardizing the con-tinued existence of the flycatcher, an endangered bird, at Lake Mead, by unlawfully taking flycatchers in the ab-sence of a valid reasonable and prudent alternative and incidental take statement. 143 F.3d at 519. The plain-tiffs’ 60-day notices, however, had failed to identify either the flycatcher or Lake Mead as a species or area of con-cern. Id. at 520-21. The notices had only generally as-serted that the defendants’ memorandum of agreement

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failed to provide for the conservation of federally listed species on the Lower Colorado River. Id. Thus, the defendant had no notice of the specific violation the Plaintiffs ultimately alleged and no opportunity to cor-rect it. Id.

Here, on the other hand, the Complaint does not chal-lenge a specific project. The specific projects mentioned by Plaintiffs merely establish their standing to challenge the Lynx Amendment. Defendants are well aware of the forests to which the Lynx Amendment applies, the lo-cations where lynx critical habitat has been designated, and the projects that have been initiated or are being considered in those areas. Under Plaintiffs’ theory, any such project would pose potential harm because of the lack of consideration on the landscape level of whether the Lynx Amendment adequately protects lynx critical habitat from adverse modification.

The Forest Service did not need Plaintiffs to point to a specific project or forest affected by the Lynx Amend-ment in order to identify the alleged violation or reiniti-ate consultation on the Lynx Amendment. S.W. Ctr., 143 F.3d at 522 (finding a notice was sufficient in it- self because the agency could have “identif[ied] and at-tempt[ed] to abate the violation”). A similar notice was adequate in Lane County Audubon Society v. Jamison, in which the plaintiffs notified the defendant agency of their intent to sue based on the agency’s failure to consult with the Wildlife Service on a programmatic manage-ment strategy to protect the spotted owl that set forth the criteria “for logging in the millions of acres adminis-tered by the [agency] in Washington, Oregon and Cali-fornia.” 958 F.2d 290, 291-92 (9th Cir. 1992).

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Center for Biological Diversity v. Marina Point De-velopment Co., 566 F.3d 794, 801 (9th Cir. 2008), is inap-plicable here. First, it arose under the Clean Water Act, not the ESA. As the court noted, 40 C.F.R. § 153.3(a) provides a “specific and clear statement of the informa-tion that must be included” in a Clean Water Act 60-day notice. Id. at 801-02. No analogous regulation exists under the ESA. Ctr. for Sierra Nevada Conservation v. US. Forest Serv., 832 F. Supp. 2d 1138, 1174 (E.D. Cal. 2011). Notably, though the court found that the plain-tiffs’ notices to the defendants failed to meet the regula-tion’s specific requirements, it held that the notices ap-peared to be sufficient under the ESA. Ctr. for Biolog-ical Diversity, 566 F.3d at 804.

Second, the permit-specific nature of the violations at issue in Marina Point is readily distinguishable from the type of procedural violation on a programmatic amend-ment that is alleged here. In Marina Point, the Com-plaint alleged violations of both §§ 402 and 404 of the Clean Water Act, 4 but the plaintiffs’ notices had not mentioned § 402 at all. The Complaint also raised claims concerning specific discharges for which the de-fendants should have obtained permits, but the 60-day notices did not identify any specific discharges. Id. Thus the notices did not comply with the requirements of 40 C.F.R. § 153.3(a) or provide notice to the defendants of what corrective actions could be taken to obviate the need for a lawsuit. Similarly, in Klamath Siskiyou Wildlands Center v. Macwhorter, 12-cv-1900-PA (D. Or.

4 Section 402 requires permits for discharges of pollutants into

navigable waters. 33 U.S.C. § 1342. Section 404 requires per-mits for the discharge of dredged or fill materials into the waters of the United States, including wetlands. 33 U.S.C. § 1344.

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April 23, 2013) (doc. 35-2), the plaintiffs filed a complaint challenging specific mining authorizations, but their Notice of Intent did not identify which mining authoriza-tions they were challenging.

In the present case, Plaintiffs are challenging the fail-ure to reinitiate consultation on the Lynx Amendment, a single programmatic decision that simultaneously amen-ded multiple forest plans. They are not challenging spe-cific projects. Their Notice cites the specific statutory and regulatory language Defendants are alleged to have violated and identifies the specific violation complained of—the failure to reinitiate consultation following the designation of lynx critical habitat in several of the for-ests subject to the Lynx Amendment. The same viola-tion and the same statutes and regulations are cited in the Complaint and form the basis for this cause of action. (Doc. 1 at 14.) Unlike the plaintiffs in Marina Point and Klamath Siskiyou Wildlands Center, Plaintiffs have not raised new claims or violations.

Defendants also claim that Plaintiffs’ request for relief—that all projects in forest land areas subject to the Lynx Amendment be enjoined pending consultation— exceeds the scope of the Notice because 16 U.S.C. § 1536(d) was not specifically mentioned in the Notice.5 While the ESA requires plaintiffs seeking injunctive re-lief to first provide notice of “the provision or regulation”

5 This section states: “After initiation of consultation required

under subsection (a)(2) of this section, the Federal agency and the permit or license applicant shall not make any irreversible or irre-trievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures which would not violate subsection (a)(2) of this section.”

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allegedly violated, it does not state that the notice must specify the statutory provision that authorizes the in-junctive relief sought. 16 U.S.C. § 1540(g). In any case, the Notice provided sufficient warning of the relief that would be sought and the applicable scope of that relief. It alleged the Forest Service violated “the ESA, 16 U.S.C. § 1531 et seq.” and cited the specific regulatory provisions the Forest Service was alleged to have violat-ed. (Doc. 23-2 at 1.) It also notified the Forest Service that Plaintiffs would seek declaratory and injunctive relief if the Forest Service failed to reinitiate consulta-tion. (Id. at 3.) See Marbled Murrelet v. Babbit, 83 F.3d 1068, 1073 (9th Cir. 1996) (“The letter clearly gives notice of an intent to sue under the ESA. Although section 7 was referenced in only one part of the letter, the letter as a whole provided notice sufficient to afford the opportunity to rectify the asserted ESA violations.”).

Because the Notice cited the specific statutes and reg-ulations that the Complaint alleges were violated, the Complaint does not raise new claims or grounds for re-lief, and the Notice provided adequate notice of the relief Plaintiffs intended to seek, Plaintiffs’ Notice was ade-quate under the ESA and this Court has jurisdiction to consider the case.

III. Whether Pacific Rivers (1994) has been effectively overruled

Under section 7(a)(2) of the ESA, an agency must con-sult with the Wildlife Service (or the National Marine Fisheries Service) to “insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction

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or adverse modification of habitat of such species which is determined . . . to be critical.” 16 U.S.C. § 1536(a)(2). Sometimes, a federal agency is required to reinitiate consultation:

Reinitiation of formal consultation is required . . . where discretionary Federal involvement or control over the action has been retained or is authorized by law and:

. . . .

(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;

. . . .

(d) If a new species is listed or critical habitat desig-nated that may be affected by the identified action.

50 C.F.R.§ 402.16. The applicable Wildlife Service reg-ulation defines “action” as “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States.” 50 C.F.R. § 402.02.

Defendants claim the Forest Service is not required to reinitiate consultation on the Lynx Amendment because that action—the amendment of the forest plans in March 2007—was completed at the time of amendment and there is no further affirmative agency action to be taken. Defendants insist the Ninth Circuit’s contrary opinion in Pacific Rivers Council v. Thomas, 30 F.3d 1050 (9th Cir. 1994), cert. denied 514 U.S. 1082 (1995) (“Pacific Rivers (1994)”), has been “effectively overruled” because it “is clearly irreconcilable with the reasoning or theory of intervening higher authority.” Miller v. Gammie, 335

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F.3d 889, 899-900 (9th Cir. 2003) (en banc). Specifically, Defendants cite the United States Supreme Court’s opin-ion in Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (“Norton v. SUWA”), and a Tenth Circuit opinion, Forest Guardians v. Forsgren, 478 F.3d 1149 (10th Cir. 2007). Defendants also cite a few Ninth Cir-cuit cases that they contend support their position. Plaintiffs, of course, argue that Pacific Rivers (1994) is controlling and that the cases relied on by Defendants are distinguishable or actually support Plaintiffs’ posi-tion.

In Pacific Rivers (1994), the Ninth Circuit held: “Given the importance of [forest plans] in establishing re-source and land use policies for the forests in question there is little doubt that they are continuing agency ac-tion under § 7(a)(2) of the ESA.” 30 F.3d at 1056. Thus, when the chinook salmon was listed as a threat-ened species two years after two forest plans had been approved, the Forest Service was required to reinitiate consultation on the plans. Id. The Ninth Circuit rea-soned that forest plans “are actions that ‘may affect’ the protected salmon because the plans set forth criteria for harvesting resources within the salmon’s habitat.” Id. at 1055. The plans set guidelines for logging, grazing, and road­building activities that “may affect” the salmon, and established the allowable sale quantity and produc-tion targets for these activities. Id. Because the plans “are comprehensive management plans governing a mul-titude of individual projects” and “every individual pro-ject planned in [a] national forest[] . . . is implemented according to the [forest plan],” the effect of a plan is “on-going and long-lasting.” Id. at 1053.

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The court explicitly rejected the Forest Service’s ar-gument, which the Forest Service reiterates here, that forest plans are only agency actions at the time they are adopted, revised, or amended, and they cease to be ac-tions upon their adoption because they do not mandate any particular action and are “  ‘merely’ programmatic documents.” Id. at 1055. The court noted the broad language defining an “action” under the ESA. Id. at 1054. The ESA requires consultation on “any action” carried out by an agency, id. (citing 16 U.S.C. § 1536(a)(2)), and the Supreme Court has stated that “[t]his language admits of no exception,” id. (citing Tenn. Valley Auth. v. Hill, 437 U.S. 153, 173 (1978)). Similar-ly, the regulatory language is broad:

Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to:

(a) actions intended to conserve listed species or their habitat;

(b) the promulgation of regulations;

(c) the granting of licenses, contracts, leases, ease-ments, rights-of-way, permits, or grants-in-aid; or

(d) actions directly or indirectly causing modifica-tions to the land, water, or air.

Id. (quoting 50 C.F.R. § 402.02) (emphasis added by Ninth Circuit). “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities, thereby adopting a policy which it described as ‘institutionalized caution.’ ” Id. at 1055 (quoting Tenn. Valley Auth., 437 U.S. at 194).

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Unless Pacific Rivers (1994) has been “effectively overruled” by subsequent, higher authority, the parties appear to agree that it mandates the conclusion that the Lynx Amendment is an ongoing agency action under the ESA and is thus subject to reinitiation of consultation requirements.

In 2004, in Norton v. SUWA, the United States Sup-reme Court determined that forest plans are not ongoing agency actions under NEPA. 542 U.S. at 72-73. NEPA requires that agencies supplement their environmental analysis for “major Federal actions” if (1) “[t]here are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts,” id. (citing 40 C.F.R. § 1502.9(c)(1)(ii)),’’ and (2) there remains ‘major Federal action’ to occur, as that term is used in [42 U.S.C.] § 4332(2)(C),’’ id. (quoting Marsh v. Or. Natural Re-sources Council, 490 U.S. 360, 374 (1989)). NEPA regu-lations recognize the “[a]pproval of a [forest plan]” as a major Federal action, 43 C.F.R. § 1601.0-6, but the Court held that “that action is completed when the plan is ap-proved” and “[t]here is no ongoing ‘major Federal action’ that could require supplementation.” Norton v. SUWA, 542 U.S. at 73.

In Forest Guardians v. Forsgren, the Tenth Circuit applied Norton’s reasoning to the ESA and explicitly rejected the Ninth Circuit’s approach in Pacific Rivers (1994). 478 F.3d at 1152-56. It held that an agency is not required to reinitiate consultation on previously ap-proved forest plans even if new species or critical habitat are listed after a plan is approved. Id. The Tenth Cir-cuit explained that although all projects must be consis-

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tent with the governing forest plan, the forest plan only provides a framework for later project decisions:

Plans do not grant, withhold, or modify any contract, permit or other legal instrument, subject anyone to civil or criminal liability, or create any legal rights. Plans typically do not approve or execute projects and activities. Decisions with effects that can be mean-ingfully evaluated typically are made when projects and activities are approved.

Id. at 1153 (quoting 36 C.F.R. § 219.3(b) (2007)).6 The court reasoned that an “agency action” includes the adoption of a forest plan, the amendment or revision of a forest plan, and the proposal and approval of a site- specific project in the forest. Id. at 1154. But the forest plan itself is not an “agency action” under the ESA after its adoption and before it is amended or revised, unless it specifically authorizes or requires an agency to fund or carry out an activity or a program. Id. at 1156.

A [forest plan] considered in isolation simply is not an ongoing, self-implementing document. Specific activ-ities, programs, and/or projects are necessary to im-plement the plan. Those same activities, programs, and projects must be alleged in a complaint that seeks to establish an “acting” agency’s duty to consult under § 7(a)(2) of the ESA. As we have explained, a [forest plan] envisions the forest will be used for multiple pur-poses, including” outdoor recreation, range, timber, watershed, wildlife and fish, and wilderness.” A plan or vision is certainly a precursor to “agency action,” but neither is action requiring § 7(a)(2) consultation.

6 This regulation appeared in the regulations until 2010. The lan-

guage does not appear in the current regulations.

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Id. at 1158 (citations omitted).

Of course, the Tenth Circuit’s decision in Forsgren is not binding in this Circuit. The opinion does not appear to have been adopted or even cited outside the Tenth Circuit except by a Ninth Circuit district court, which merely noted, while following the Ninth Circuit prece-dent, the Tenth Circuit’s express rejection of the conclu-sion in Pacific Rivers (1994) that the ongoing implemen-tation of a forest plan is an action for purposes of the ESA. Coalition for a Sustainable Delta v. Fed. Emerg. Mgt. Agency, 812 F. Supp. 2d 1089, 1109 n.7 (E.D. Cal. 2011). Nor does it appear that any other Circuit has adopted Pacific Rivers (1994)’s contrary approach.

Both parties argue that Ninth Circuit case law since Pacific Rivers (1994) supports their view concerning whether the case is still good law. Plaintiffs’ arguments are more convincing.

The Ninth Circuit distinguishes “agency actions” un-der the ESA from those under NEPA, noting that it has “repeatedly held that the ESA’s use of the term ‘agency action’ is to be construed broadly.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1024 (9th Cir. 2012) (en banc) (“Although the ‘major federal action’ standard under NEPA is similar to the more liberal ‘agency action’ standard under the ESA, the terms are not interchange-able.”); Marbled Murrelet, 83 F.3d at 1075 (noting that though the agency action standards under NEPA and the ESA are somewhat similar, the distinction in their word-ing demonstrates that the NEPA requirement for an EIS is “more exclusive” than the requirement under section 7 of the ESA). See also P. Coast Fedn. of Fishermen’s Assns., 2007 WL 1752289, * 16 n.5 (E.D. Cal. 2007).

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Although the Ninth Circuit construes the ESA stand-ard broadly, it has recognized that not all agency actions remaining ongoing after they are approved. Cal. Sport-fishing Protec. Alliance v. F.E.R.C., 472 F.3d 593, 597 (9th Cir. 2006). For example, where an agency has al-ready granted a right of way to a logging company or is-sued an incidental take permit to a contractor, the action has been completed and need not be revisited if a trig-gering event under 50 C.F.R. § 402.16 occurs. Id. at 598 (citing cases). In California Sportfishing, the court focused on the “potential effect of the government’s con-templated action,” id. at 597, and emphasized that some “affirmative action” is necessary for the action to remain ongoing, id. at 598 (citation omitted). Citing Pacific Rivers (1994), it confirmed that a forest plan is an ongoing agency action because the plan “continue[s] to apply to new projects” and thus has an “ ‘ongoing and long-lasting effect even after adoption,’ ” id. at 598 (quoting Pacific Rivers (1994), 30 F.3d at 1052)). The Ninth Circuit has also cited Pacific Rivers (1994) with approval in Western Watersheds Project v. Matejko, stating: “Ongoing agency action also existed in Pacific Rivers [(1994).]” 468 F.3d 1099, 1110 (9th Cir. 2006).

Defendants’ notice of supplemental authority cites a recent Northern District of California case that held that Pacific Rivers (1994) was “implicitly overruled” by the Ninth Circuit in Karuk Tribe, 681 F.3d 1006. Ctr. for Biological Diversity v. Envtl. Protec. Agency, 2013 WL 1729573 (N.D. Cal. Apr. 22, 2013). The case is distin-guishable from this case, however. The plaintiffs alleged the Environmental Protection Agency violated the ESA by failing to reinitiate consultations on the effects of 382 registered pesticides on listed species. Each pesticide corresponded to an individual agency act—the approval of

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the pesticide. Thus, there were 382 different acts, each of which had to be challenged independently. Here, on the other hand, there is only one agency act—the ap-proval of the Lynx Amendment. Additionally, the ap-proval of a pesticide is not a programmatic regulation or plan amendment that governs later actions.

Presumably, Defendants are interested in the court’s interpretation of Karuk Tribe. The court stated that Karuk Tribe’s requirement that section 7 only applies when an agency makes an affirmative act implicitly overruled Pacific Rivers (1994)’s holding that forest plans are ongoing agency actions. Id. at *10. The court’s statement was dicta, however, because it was not considering a forest plan. Moreover, Karuk Tribe did not mark the first time the Ninth Circuit held that an affirmative act is required to find ongoing agency action under the ESA. In Western Watersheds v. Matejko, the Ninth Circuit noted this requirement and expressly con-firmed that forest plans constitute ongoing, affirmative agency action because the Forest Service “maintained continuing authority under a comprehensive and long term management plan, that was still in effect.” 468 F.3d at 1102, 1111. See also Cal. Sportfishing, 472 F.3d at 597-98.

Because the Ninth Circuit has demonstrated contin-ued support for Pacific Rivers (1994) in decisions em-phasizing that an “affirmative act” is necessary for an agency action to be ongoing, this Court respectfully dis-agrees with the district court’s conclusion that Karuk Tribe implicitly overruled Pacific Rivers (1994). Forest plans and programmatic amendments to forest plans are not situations “[w]here private activity is proceeding pursuant to a vested right or to a previously issued li-

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cense.” Karuk Tribe, 681 F.3d at 1021. Instead, mul-tiple federal actions stem from those forest plans because a forest plan “continue[s] to apply to new projects.” Cal. Sportfishing, 472 F.3d at 598. The district court’s hold-ing on pesticide regulations is not applicable to forest plans.

In Karuk Tribe, the Ninth Circuit explained that an “agency action” inquiry under the ESA is two-fold:

First, we ask whether a federal agency affirmatively authorized, funded, or carried out the underlying ac-tivity. Second, we determine whether the agency had some discretion to influence or change the activity for the benefit of a protected species.

681 F.3d at 1021. Here, the Forest Service affirmatively enacted the Lynx Amendment in order to set broad standards for the management of the Canada Lynx, and it continues to carry out the Lynx Amendment in 18 dif-ferent forests. All projects proposed or enacted in those forests must be consistent with the Lynx Amendment— thus the Amendment is not merely advisory. It contin-ues to have significant effects each time a new project relying on the Amendment is authorized, and as held in Sierra Forest Legacy, a procedural failure related to a programmatic plan cannot be compensated for in a pro-ject analysis for a specific site. 646 F.3d at 1180. The Forest Service also maintains discretionary involvement or control over the Lynx Amendment, as evidenced by the fact that in some forests, the Forest Service has volun-tarily reinitiated consultation on the Lynx Amendment since new critical habitat was designated.

Given that the Ninth Circuit distinguishes ongoing agency actions under NEPA and the ESA and has cited

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Pacific Rivers (1994) with approval since Norton v. SUWA was issued, it is not clear that Pacific Rivers (1994) has been effectively overruled. Such a determi-nation is not for this Court to make, even though the Forest Service has presented a pragmatic argument for following the Tenth Circuit’s lead. Under Ninth Circuit case law, then, the Lynx Amendment constitutes an on-going agency action under the ESA. The Forest Service is required to reinitiate consultation on the Amendment if a triggering event under 50 C.F.R.§ 402.16 occurs.

IV. Whether a triggering event occurred

Agencies are required to engage in section 7 consulta-tion whenever an action “may affect” a listed species. As the agencies recognized when they first consulted on the Lynx Amendment, the Amendment “may affect” the lynx and lynx critical habitat because it provides the broad management direction for 20 forest plans covering 18 separate national forest units.

Though the Forest Service and Wildlife Service con-sulted on the Lynx Amendment in 2007, Plaintiffs contend they must re-initiate consultation based on the subse-quent designation of lynx critical habitat. An agency must reinitiate consultation in the following circum-stances:

(a) If the amount or extent of taking specified in the incidental take statement is exceeded;

(b) If new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered;

(c) If the identified action is subsequently modified in a manner that causes an effect to the listed species or

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critical habitat that was not considered in the biological opinion; or

(d) If a new species is listed or critical habitat desig-nated that may be affected by the identified action.

50 C.F.R. § 402.16. These events provide a “trigger” to “ensure that the ‘no jeopardy ‘determination remains valid.” Ctr. for Biological Diversity v. Salazar, 695 F.3d 893, 909 (9th Cir. 2012) (citations omitted).

The designation of critical habitat in 11 national for-ests to which the Lynx Amendment applies satisfies both subsections (b) and (d) of 50 C.F.R. § 402.16. Since no critical habitat had been designated when the agencies first consulted on the Amendment, the Bi-Op concluded that “none will be affected.” AR 0101(a) at 75. Nor did the Bi-Op address whether the Amendment would impact the Primary Constituent Elements of lynx habitat. “The analysis of the effects to critical habitat is a separate and different analysis from that of the effects to the species, and may provide greater regulatory benefits to the re-covery of a species than listing alone.” AR 2535 at 8616, 8624.

The agencies cannot shift this analysis to the project level. Sierra Forest Legacy, 646 F.3d at 1180; Pac. Coast Fedn. of Fishermen’s Assns. v. Natl. Marine Fisheries Serv., 428 F. Supp. 2d 1248, 1267 (W.D. Wash. 2007) (citation omitted); As the Wildlife Service found in its 2007 Biological Opinion:

Without programmatic guidance and planning to con-serve lynx, assessment of land management effects to lynx and development of appropriate conservation strategies are left to project-specific analysis without consideration for larger landscape patterns.

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Bi-Op at 75. A “big picture approach to lynx manage-ment” is required. AR 0101(a) at 70. “[L]andscape level direction [is] necessary for the survival and recov-ery of lynx in the northern Rockies ecosystem.” AR 0101(a) at 70. “[M]anagement activities [can] reduce or degrade essential habitat elements used by lynx for den-ning, foraging, and recruitment, or [] increase habitat fragmentation and lynx mortality” and “[e]ffects may occur and/or continue without appropriate management direction at broad scales.” AR 2375 at 31. The Forest Service cannot now claim the opposite—that project- specific analysis is sufficient to protect the lynx and its habitat in the larger region.

By failing to reinitiate consultation on the Lynx Amendment, the Forest Service violated 50 C.F.R. § 402.16 and section 7 requirements after lynx critical habitat was identified in forests subject to the Amend-ment. The Forest Service must now reinitiate consulta-tion in order to determine that the Amendment is “not likely to . . . result in the destruction or adverse modi-fication of ” designated critical habitat, 16 U.S.C. § 1536(a)(2), “in a way that will affect both the conserva-tion of the species, and its recovery,” AR 2535 at 8646. The Forest Service and Wildlife Service must determine “whether, with implementation of the [Amendment], the affected critical habitat would remain functional (or re-tain the current ability for the [primary constituent ele-ments] to be functionally established) to serve its in-tended conservation role for the species.” AR 2535 at 8644.

V. Appropriate Relief

It is “well-settled that a court can enjoin agency action pending completion of section 7(a)(2) requirements.”

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Wash. Toxics Coalition v. EPA, 413 F.3d 1024, 1034 (9th Cir. 2005). Section 7 provides that “[a]fter initiation of consultation required under subsection (a)(2) of this sec-tion, the Federal agency . . . shall not make any irre-versible or irretrievable commitment of resources with respect to the agency action which has the effect of fore-closing the formulation or implementation of any reason-able and prudent alternative measures which would not violate subsection (a)(2) of this section.” 16 U.S.C. § 1536(d). Additionally, “the strict substantive provi-sions of the ESA justify more stringent enforcement of its procedural requirements [than NEPA’s procedural requirements], because [the ESA’s] procedural require-ments are designed to ensure compliance with the sub-stantive provisions.” Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985).

The “traditional preliminary injunction analysis does not apply to injunctions issued pursuant to the ESA.” Nat. Wildlife Fedn. v. NMFS, 422 F.3d 782, 793 (9th Cir. 2005). The Court cannot “balance interests in protect-ing endangered species against the costs of the injunction when crafting its scope.” Wash. Toxics Coalition, 413 F.3d at 1035. “Congress has decided that . . . the balance of hardships always tips sharply in favor of the endangered or threatened species.” Id. Additionally, the Ninth Circuit has implemented a burden-shifting approach under which an agency that has violated section 7 must prove a particular action is non-jeopardizing in order to avoid an injunction. Id. Requiring this proof of the acting agency “is consistent with the purpose of the ESA and what [the Ninth Circuit has] termed its institu-tionalized caution mandate.” Id.

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Despite this liberal standard for imposing injunctive relief under section 7, Plaintiffs are still obligated to show an irreparable injury to support the issuance and scope of an injunction. In National Wildlife Federation v. Na-tional Marine Fisheries Service, the Ninth Circuit held that the district court’s rejection of a biological opinion under the ESA, together with its finding of irreparable harm, were “precisely the circumstances in which our precedent indicates that the issuance of an injunction is appropriate.” 422 F.3d 782, 796 (9th Cir. 2005). The Ninth Circuit also stated in National Wildlife Federation v. Burlington Northern Railroad that ESA cases “do not stand for the proposition that courts no longer must look at the likelihood of future harm before deciding whether to grant an injunction under the ESA.” 23 F.3d 1508, 1511 (9th Cir. 1994) (internal citations omitted).

Similarly, a district court has held:

Reason dictates that plaintiffs make a showing that the particular injunction they request is necessary to prevent irreparable harm caused by the defendants’ violation of the ESA. It could not be the case that any time defendants are found liable for a significant violation of the ESA’s procedural provisions, the plain-tiffs are entitled to any form of injunctive relief that they request. Indeed, “injunctive relief must be tai-lored to remedy the specific harm alleged.” NRDC v. Winter, 508 F.3d 885, 886 (9th Cir. 2007). As a prac-tical matter, the court must decide what irreparable harms are likely to occur to the species in order to craft an appropriately tailored injunction. Here, plaintiff is only entitled to an injunction that prevents irreparable harm caused by defendants’ violation of the Endangered Species Act. Thus, even if a show-

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ing of irreparable harm was not necessary for an in-junction to issue, such a showing is required in order to justify the specific measures that plaintiffs’ request. Accordingly, the court holds that plaintiff must show that irreparable harm to the listed species will result from defendants’ violation of the ESA in the absence of each measure plaintiffs request.

S. Yuba River Citizens League v. Natl. Marine Fisheries Serv., 804 F. Supp. 2d 1045, 1054 (E.D. Cal. 2011), recon-sideration denied in part, 851 F. Supp. 2d 1246 (E.D. Cal. 2012).

The practical approach adopted by the district court in South Yuba River Citizens League is persuasive. Based on the limited factual support provided by Plaintiffs, the Court cannot analyze in the context of this case whether the harm posed by all projects to take place in Lynx Amendment forests is likely to occur and is irreparable, and there is no basis for the Court to properly narrow the scope of the injunction. Although “[i]rreparable damage is presumed to flow from a failure properly to evaluate the environmental impact of a major federal action,” Thomas v. Peterson, 753 F.2d 754, 764 (9th Cir. 1985), and although the “[t]he remedy for a substantial procedural violation of the ESA—a violation that is not technical or de minimis—must . . . be an injunction of the project pending compliance with the ESA,” Wash. Toxics Coali-tion, 413 F.3d at 1034, Plaintiffs have not met their bur-den to substantiate the particular relief requested. They have not provided any evidence for assessing the “likeli-hood of harm” or ensuring that the injunction is “tailored to remedy the specific harm alleged.” Natl. Wildlife Fedn. v. Burlington N.R.R., 23 F.3d at 1511; NRDC v. Winter, 508 F.3d at 886.

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Plaintiffs’ decision not to challenge any particular pro-ject also imposes an impossible burden on Defendants under the burden-shifting approach of Washington Tox-ics. To show their actions are non-jeopardizing, Defen-dants would have to show that each action to take place in all the forests subject to the Lynx Amendment will not “appreciably” or “considerably” “diminish the value of critical habitat for both the survival and recovery of the listed species.” 50 C.F.R. § 402.02. The Lynx Amend-ment amended 20 plans affecting 18 forests, 11 of which include critical lynx habitat. Thus, the breadth of in-junction requested by Plaintiffs would impose an impos-sible task on Defendants. If Plaintiffs had substantiated their request with specific showings of irreparable harm, such a burden would be fair. But it is not in the total ab-sence of such evidence.

This approach is consistent with that taken by the Eastern District of California in Sierra Forest Legacy v. Sherman, 2013 WL 1627894 (E.D. Cal. Apr. 15, 2013), a NEPA case. As that court found, project-specific in-junctive relief may not be appropriate if plaintiffs have not “identified any imminent [project] in any specific area and explained how such [project] will harm their inter-ests.” Sierra Forest Legacy, 2013 WL 1627894, *8. “[B]road and untethered allegations of harm cannot serve as the irreparable injury required to demonstrate the need for injunctive relief.” Id.

Plaintiffs have not met the burden of identifying likely and irreparable harm tied to specific projects in Lynx Amendment forests. “Establishing injury-in-fact for the purposes of standing is less demanding than demonstrat-ing irreparable harm to obtain injunctive relief.” Id. at *8 n.6 (citing Carribean Marine Serv. Co. v. Baldridge,

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844 F.2d 668, 674 (9th Cir. 1988), and Ctr. for Food Safety v. Vilsack, 636 F.3d 1166, 1171 n.6 (9th Cir. 2011)). Here, Plaintiffs merely state that the lack of landscape- level analysis will impair their ability to view lynx in the Bozeman Municipal Watershed Project and the East Boulder Project areas. They make no showing that the harm is likely to occur despite the site-specific analyses or that the harm is irreparable. Accordingly, these pro-jects will not be enjoined. Nor have Plaintiffs made a sufficient showing of likely, irreparable harm to support the injunction of any other projects. Thus no projects will be enjoined in this case, but the Forest Service must reinitiate consultation on the Lynx Amendment.

CONCLUSION

For the reasons discussed above,

IT IS ORDERED that Defendants’ motion for sum-mary judgment (doc. 22) is DENIED, and Plaintiffs’ mo-tion for summary judgment (doc. 17) is GRANTED, as follows: the Forest Service shall reinitiate consultation on the Lynx Amendment, but no specific projects are enjoined because Plaintiffs have not made an adequate showing of irreparable harm to obtain the relief request-ed.

This case is closed.

Dated this 16th day of May 2013.

/s/ DANA L. CHRISTENSEN DANA L. CHRISTENSEN, Chief Judge United States District Court

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APPENDIX D

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

CV 12-45-M-DLC

NOLAN SALIX; COTTONWOOD ENVIRONMENTAL LAW CENTER, PLAINTIFFS

v.

UNITED STATES FOREST SERVICE; FAYE KRUEGER, IN HER OFFICIAL CAPACITY AS REGIONAL FORESTER FOR

THE U.S. FOREST SERVICE, REGION ONE, DEFENDANTS

DECLARATION OF SARA JANE JOHNSON, Ph. D.

I, Sara Jane Johnson, hereby declare as follows:

1. I submit this declaration in support of Plaintiff’s Complaint for Declaratory and Injunctive Relief and Plaintiff’s Motion for Summary Judgment. I have per-sonal knowledge of the matters stated herein, and if called as a witness, would and could competently testify thereto.

2. I am currently a resident of Three Forks, Montana and have been a member of Cottonwood Environmental Law Center (“CELC”) since 2010.

3. I have a strong interest in the management of wildlife on public forest lands. This interest is based on my years of education, training and professional experience. I ob-tained a bachelor’s and masters degree in biology at the

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University of South Dakota in 1967 and 1969, and a Ph.D in biology at Montana State University in 1974. I worked as a wildlife biologist for the U.S. Forest Service in Mon-tana and Idaho from 1974 into 1988. During those 14 years I was extensively involved in wildlife habitat plan-ning in areas where logging was planned. As a part of this work, I completed various monitoring efforts re-garding logging impacts on wildlife species ranging from small mammals and birds to big game species. This in-terest is also based on my recreational interests as a life-long hiker, wildlife watcher an outdoor enthusiast who enjoys these activities on numerous public forest lands throughout Montana and Idaho.

4. Over the past 20 years, I have spent countless hours hiking and recreating in National Forests across Mon-tana, many of which include areas of designated critical habitat for the threatened lynx. This includes the fol-lowing activities and areas:

• Hiking, taking pictures and looking for wildlife, including lynx, in the Gallatin National Forest in southwest Montana, specifically in the East Boulder and Hyalite Project areas of this forest.

• Visiting and recreating in the Colt Summit Pro-ject Area near Seeley lake in the Lolo National Forest.

• Hiking, skiing and looking for wildlife, including lynx in the Flathead National Forest in north-western Montana.

• Hiking and looking for wildlife, including lynx, in the Helena National Forest.

5. I enjoy visiting these areas of the National For-ests, and I use them on a continuing and ongoing basis.

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My strong interest in wildlife protection and forest management dictates that I will continue these activi-ties, and I have every intention of returning to these and other areas of lynx critical habitat. I have con-crete plans to return to these forests, and critical hab-itat contained within them, during the spring and sum-mer of 2013.

6. The government’s failure to re-initiate consulta-tion under the ESA on its programmatic planning doc-ument for numerous National Forests is a significant procedural violation that negatively affects my scien-tific, recreational and aesthetic interests.

7. The government’s failure to consult means that we do not know what effect the government’s manage-ment activities, such as logging, are having on areas of lynx critical habitat. I have serious concerns that the government’s violation of the law will have serious im-pacts to lynx critical habitat at the landscape level, in-cluding the widespread destruction of lynx habitat and habitat for the snowshoe hare. If this happens, I will suffer scientific, recreational and aesthetic injuries because my chances of seeing a lynx in the wild will be significantly diminished. These are actual concrete injuries. If the government re-initiated consultation and determined its programmatic management direc-tion will result in adverse modification of lynx critical habitat at the landscape scale, it may determine that the NRLA is not appropriate for guiding management activities. Because the agency has not made the de-termination, it has broken the law. The violation threatens my concrete interests.

8. My personal, recreational and conservation inter-ests, as well as those of CELC and its members will be

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harmed if the government does not re-initiate consul-tation as required by the ESA. My ability, and other CELC members’ ability, to see and enjoy lynx will be adversely impacted as a result of the above-named in-juries.

9. Unless these injuries are redressed, myself, CELC, its members and the general public will suffer substantive harm.

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Dated: Nov. 27, 2012

/s/ SARA JANE JOHNSON SARA JOHNSON

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APPENDIX E

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

MISSOULA DIVISION

CV 12-45-M-DLC

NOLAN SALIX; COTTONWOOD ENVIRONMENTAL LAW CENTER, PLAINTIFFS

v.

UNITED STATES FOREST SERVICE; FAYE KRUEGER, IN HER OFFICIAL CAPACITY AS REGIONAL FORESTER FOR

THE U.S. FOREST SERVICE, REGION ONE, DEFENDANTS

DECLARATION OF JOE MILBRATH

I, Joe Milbrath, hereby declare as follows:

1. I submit this declaration in support of Plaintiff’s Complaint for Declaratory and Injunctive Relief and Plaintiff’s Motion for Summary Judgment. I have per-sonal knowledge of the matters stated herein, and if called as a witness, would and could competently testify thereto.

2. I am currently a resident of Missoula Montana and have been a member of Cottonwood Environmental Law Center (“CELC”) since January 2011.

3. I have a strong interest in the management of wildlife on public forest lands. This interest is based on my rec-reational interests as a lifelong hiker, skier, photogra-pher, and outdoor enthusiast who enjoys these activities

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on numerous public forest lands throughout Montana. Part of what makes Montana so special is its wildlife. While I am out in the National Forests I look for Canada lynx and for signs of them.

4. As part of my employment, I have spent a considera-ble amount of time visiting and recreating in Montana’s National Forests. In the past two years, I have spent over 120 days each year hiking, backcountry skiing and recreating in designated lynx critical habitat in National Forests in the state of Montana. I have recreated in the following National Forests, many of which contain lynx critical habitat:

• The Kootenai National Forest

• The Flathead National Forest

• The Lolo National Forest

• The Lewis and Clark National Forest

• The Helena National Forest

• The Gallatin National Forest

• The Custer National Forest

6. Specifically, I have recreated in the following mountain ranges/areas within these forests, including numerous areas that contain lynx critical habitat: Bitterroot Mountains, Sapphire Mountains, West Fork, Reservation Divide, Seeley-Swan Ranges, Mis-sion Mountains, Jewel Basin, Garnett Mountains, the Rock Creek Area, Sawtooth Range (Rocky Mountain Front), North Fork of the Flathead, Glacier National Park, Livingston Range, Tobacco Root Mountains, Gravelly Range, Snow-Crazy Mountains, Madison Range, Gallatin Range, Spanish Peaks, Taylore Fork,

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Hyalite Canyon, Bridger Range, Paradise Valley, Tom Miner Basin, Absaroka-Beartooth Mountains, Boulder River Drainage, Snow Crest Range, Yaak Valley, Cabinet Mountains, Hoodoo Pass, Lost Trail Pass, Big Belt Mountains, Little Belt Mountains, Pryor Moun-tains, Flint Mountains, Anaconda-Pintler Mountains, Butte Highlands, Pioneer Mountains, and the Big Hole Valley.

7. I enjoy visiting areas of these National Forests that contain designated critical habitat because it offers me a better opportunity to see Canada lynx. I use these areas of designated critical habitat on a con-tinuing and ongoing basis. I have every intention of returning to these and other areas of lynx critical habitat. I have definitive and concrete plans to visit designated lynx critical habitat 4-5 days per week every day next summer and fall (2013) in the above named national forests.

8. Because I use designated critical habitat so exten-sively, I have no doubt that I will come into contact with designated critical habitat that will be affected by the Northern Rockies Lynx Amendment next summer and fall. I have already recreated in the Bozeman Watershead project area, and have definitive plans to ski in the area next spring and to look for signs of Canada lynx.

9. The government’s failure to re-initiate consulta-tion under the ESA on its NRLA programmatic plan-ning document for numerous National Forests is a significant procedural violation that negatively affects my recreational and aesthetic interests.

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10. The government’s failure to re-initiate consulta-tion means the agency does not know what effect its management activities, such as logging, are having on areas of lynx critical habitat at the landscape scale. The government’s violation of the law will have serious impacts to lynx critical habitat at the landscape level, including the widespread destruction of lynx habitat and the habitat of its primary prey, the snowshoe hare. If these impacts occur, I will suffer recreational and aesthetic injuries because my chances of seeing a lynx in the wild will be significantly diminished. These are concrete injuries.

11. If the government re-initiated consultation and de-termined its programmatic management direction will result in adverse modification of lynx critical habitat at the landscape scale, it may determine that the NLRA is not appropriate for guiding management activities. Because the agency has not made the determination, it has broken the law. The violation threatens my con-crete interests.

12. My personal, recreational, conservation, and aes-thetic interests, as well as those of CELC and its members will be harmed if the government does not re-initiate consultation as required by the ESA. My ability, and other CELC members’ ability, to see and enjoy lynx and their habitat will be adversely impacted as a result of the above-named injuries.

13. Unless these injuries are redressed, myself, CELC, its members and the general public will suffer procedural and substantive harm.

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I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Date: Nov. 22, 2012

/s/ JOE MILBRATH JOE MILBRATH

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APPENDIX F

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

Cause No.

NOLAN SALIX; COTTONWOOD ENVIRONMENTAL LAW CENTER, PLAINTIFFS

v.

UNITED STATES FOREST SERVICE; FAYE KRUEGER, IN HER OFFICIAL CAPACITY AS REGIONAL FORESTER OF THE

U.S. FOREST SERVICE, REGION ONE, DEFENDANTS

DECLARATION OF JENNIFER PULCHINSKI

I Jennifer Pulchinski, hereby declare as follows:

1. I submit this declaration in support of Plaintiff’s Complaint for Declaratory and Injunctive relief. I have personal knowledge of the matters stated herein and, if called as a witness, would and could competently testify thereto.

2. I am currently a resident of Bozeman, Montana, and I have been a member of Cottonwood Environmental Law Center (CELC) since July 2011).

3. I enjoy recreating in the Gallatin and Custer National Forests and have recreated in the East Boulder Project Area. I understand that the Project area contains desig-nated lynx critical habitat.

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4. I am interested in protecting wildlife on public forest lands. This interest is based on my lifetime as a hiker and recreationist who enjoys these activities on numerous public forest lands throughout Montana.

5. I recreate in designated lynx critical habitat. I enjoy visiting these areas, and I use them on a continuing and ongoing basis. These visits provide me an opportunity to engage in several of my hobbies, which include hiking, and looking for lynx and its favorite prey—the snowshoe hare.

6. I have visited the Project Area, including the desig-nated critical habitat within the Project area, in the past to participate in the above-mentioned recreational activi-ties. My most recent visit was on September 3 2012, and I have concrete plans to return to hike, look for deer and elk, and look for lynx in their designated critical habitat in mid-July of 2013.

7. I have been, and will continue to be, injured by the defendants’ failure to re-initiate lynx consultation under the Endangered Species Act (ESA). I am concerned the agency’s failure to re-initiate consultation on the North-ern Rockies Lynx Amendment (NRLA) and Forest Plans that incorporate the Northern Rockies Lynx Manage-ment Direction is allowing the agency to use management direction that is adversely modifying lynx critical habitat at both the site-specific and landscape scales. I am concerned that if the NRLA and NRLMD allow for ad-verse modification, the designated critical habitat will be less suitable for lynx, which diminishes my opportunity to view and enjoy lynx.

8. The negative impacts to lynx and their critical habitat degrades my spiritual experience and recreational expe-

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rience of hiking and looking for wildlife such as the lynx. These are actual, concrete injuries.

9. My personal, spiritual, recreational, and conservation interests as well as those of CELC and its members will be harmed if the defendants do not re-initiate consultation as required by the ESA. My ability and other CELC members’ ability to see and enjoy lynx will be adversely impacted as a result of the above-named injuries.

10. Unless these injuries are redressed by the requested relief, myself, CELC, its members, and the general public will suffer substantive harm.

I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge.

Dated: Sept. 4, 2012

/s/ JENNIFER ANN PULCHINSKI JENNIFER ANN PULCHINSKI

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APPENDIX G

1. 16 U.S.C. 1536(a) provides in pertinent part:

Interagency cooperation

(a) Federal agency actions and consultations

* * * * *

(2) Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an “agency action”) is not likely to jeopardize the contin-ued existence of any endangered species or threatened species or result in the destruction or adverse modifi-cation of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section. In fulfilling the requirements of this paragraph each agency shall use the best scientific and commercial data available.

* * * * *

2. 50 C.F.R. 402.02 provides in pertinent part:

Definitions.

* * * * *

Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by

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Federal agencies in the United States or upon the high seas. Examples include, but are not limited to:

(a) actions intended to conserve listed species or their habitat;

(b) the promulgation of regulations;

(c) the granting of licenses, contracts, leases, ease-ments, rights-of-way, permits, or grants-in-aid; or

(d) actions directly or indirectly causing modifica-tions to the land, water, or air.

* * * * *

3. 50 C.F.R. 402.03 provides:

Applicability

Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal in-volvement or control.